New South Wales Court of Criminal Appeal CITATION : Regina v Tarpey [2001] NSWCCA 300 FILE NUMBER(S) : CCA 60841/00 HEARING DATE(S) : 6 August 2001 JUDGMENT DATE : 6 August 2001 PARTIES : Regina v Joshua William Tarpey JUDGMENT OF : Dowd J at 34; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1163; 00/21/1121 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER : COUNSEL : (A) P M Winch (C) E A Wilkins SOLICITORS : (A) D J Humphreys (C) S E O'Connor CATCHWORDS : Sentencing - multiple offences - application of Pearce v The Queen - young offender - sentence on one count manifestly excessive DECISION : Leave to appeal granted - Appeal against fixed term sentence of three years for each of the break enter and steal counts numbered 1 to 5 dismissed - Appeal against sentence of eight years on break enter and steal count of 31 March 2000 (count 6) allowed - Sentence quashed - in lieu thereof the applicant is sentenced to imprisonment for six years commencing on 31 March 2000 with a non-parole period of three years nine months commencing that day and expiring on 29 December 2003 - This sentence to be served concurrently with the other sentences. IN THE COURT OF CRIMINAL APPEAL 60841/00 DOWD J SMART AJ Monday 6 August 2001 REGINA v JOSHUA WILLIAM TARPEY JUDGMENT 1 SMART AJ: Joshua William Tarpey seeks leave to appeal against the severity of the sentences imposed upon him in respect of six counts of break enter and steal. On each of counts one to five he was sentenced to concurrent fixed terms of three years imprisonment. 2 As to count six he was sentenced to eight years imprisonment with a non-parole period of five years to be served concurrently with the other sentences. 3 When dealing with count six (the break enter and steal offence of 31 March 2000), the judge took into account eight other offences being two offences of break and enter with intent to steal, two offences of larceny, one of assault, one of goods in custody, one of possess house breaking implements, and one of possessing implements to steal a car. 4 The offences occurred between 9 November 1999 and 31 March 2000. 5 The following summary of the offences comes largely from portions of the judge's remarks. On 9 November 1999 the applicant went to a house in Flowerdale Road, Liverpool in daylight, removed a glass sliding door from its track, entered the house, ransacked the rooms, but apparently did not remove any property. 6 On 17 November 1999 at a Parramatta library, the applicant stole a young lady's mobile phone valued at $1,000 and a purse containing $60 when she temporarily left her belongings unattended. 7 On 26 November 1999 the applicant stole $300 from the till of a video shop at Guildford. There was also a relatively minor assault involving some pushing and shoving of the proprietor. 8 On 11 December 1999 the applicant broke through the window of a ground floor unit at Cronulla. He ransacked the unit and stole a gold ring. 9 On 2 January 2000 he tried to jemmy open a rear door and a rear window of a house at Artarmon. He broke a window, entered the house and ransacked it, but took nothing. 10 On 5 January 2000 he went to the Hunter Hotel at The Rocks. He kicked in the glass door of the hotel destroying the glass and the door frame, and he stole various items of electronic equipment having a value of $4,732. No property has been recovered. 11 On 9 January 2000 he smashed the rear window of a private house at Epping, and entered. He stole money and a cosmetic kit, and ransacked the house. 12 In the early hours of 26 March 2000 he broke and entered the Catholic Education Office at Parramatta and stole five Apple computers, four laptop computers and various other items of electronic equipment having a total value of $29,187. Nothing has been recovered. 13 On 30 March 2000 the applicant broke into the premises of some real estate agents at Parramatta. He stole six laptop computers, a dictaphone, a calculator and various other items having a total value of $23,820. Nothing has been recovered. 14 On 31 March 2000 commercial premises at Artarmon were broken into and entered, and a facsimile machine, a laptop computer, and other items having a total value of $7,445 were stolen. A glass window was smashed. The property was recovered from a vehicle driven by the applicant and followed by the police. Also found in the vehicle were a mini cassette recorder, and a man's wrist watch. The true owner was unable to be identified. This was the charge of goods in custody. Also found were one life hammer used for smashing glass, one glass hammer, and one pair of vernier callipers. All these were commonly used for breaking into premises. This was the charge of possession of housebreaking implements. 15 The key located in the ignition was a jiggle key. It had been filed down to enable easy access to vehicle locks and ignition switches. This was the charge of possession of implements to steal a car. 16 The applicant was born on the 14 November 1978. He was thus aged 20 when the first offence was committed and 21 when the remainder were committed. He has had offences every year from 1994 to 2000 and many of them. There are many dishonesty offences, many drug offences and a number of assaults. There have been many fines and two short gaol sentences, one of two months and one of four months and three months home detention. The record is typical of that of a heroin addict. 17 Heroin is the applicant's problem. The applicant told a probation and parole officer that he started on marijuana at the age of 15 and graduated to heroin at the age 17. He said that he stopped using marijuana at age 20. With heroin he started to use it intravenously in 1999. He was spending $200-300 a day on heroin and committing crimes to finance his habit. He maintained that he has not used heroin since his arrest about 31 March 2000. 18 The probation and parole officer described the applicant as a likable young man who expressed recognition of his need to remain drug free. However he appeared to have an unrealistic attitude as to how to do this. The applicant told both the parole officer and the judge that he was not sure if he would be able to complete a live-in rehabilitation programme. 19 The judge found special circumstances stating that this was primarily directed towards reducing the minimum term because of the applicant's young age and he had not served any substantial term of imprisonment so far. The judge said: "...the primary problem is the multiplicity of offences. The fact is that people's property does matter. If you want some money to buy drugs you simply smash your way into whatever is available and help yourself to many many thousands of dollars worth of equipment. I have little doubt that it was sold at about 5 percent of what it was really worth just to score the next hit that was required at the time". 20 The judge said "the full-term penalty" that he should impose was one of 11 years and that he should discount this by 25 percent. This led him to a full-time penalty of eight years as he struck off the three months. He imposed that sentence in respect of the offence of break, enter and steal on 31 March 2000. 21 The judge in purported deference to Pearce announced the sentence he would have imposed dealing with each offence separately and pointed out if you added the penalty each offence together you would arrive at something over 30 years. Applying the principle of totality he reached a full-term penalty of 11 years. 22 When the judge was indicating the individual sentences, he indicated one of three and a half years for the offence of 31 March 2000 of break, enter and steal. Despite the submissions of the applicant, there is no valid objection to the judge selecting the offence of 31 March 2000 as the one on which to take the eight other offences into account. This course was sensible. It was a bad offence of break, enter and steal and three of the offences taken into account were linked with the offence of break, enter and steal of 31 March 2000, the goods being found in the vehicle. 23 In the context, the fact that that offence could have been dealt with summarily is not a matter of importance. It is true that, standing alone, the offence of break, enter and steal from the Catholic Education Office was probably the most serious one but the judge did not take any other offences into account when dealing with that offence. However, once the offences are taken into account on the offence of break, enter and steal of 31 March 2000 the penalty for that offence will be the highest one imposed. It was the last offence in a rising tide of criminality. 24 The applicant's previous sentences were short. It is a large increase to go to a minimum term of five years for a young offender. While there had to be a substantial sentence in respect of the break, enter and steal of 31 March 2000, taking into account eight other offences, two of which involved break and enter with intent, it does seem that the judge has selected one offence on which to impose the major punishment. 25 The judge does not seem to have followed the principles in Pearce. The sentence of eight years with a non-parole period of five years for the offence of break, enter and steal of 31 March 2000, taking into account the eight other offences, is manifestly excessive. 26 We were referred to the statistics produced by the Judicial Commission. As to the schedule of full terms for multiple counts with form 1 matters, a plea of guilty and an accused in the age group of 21 to 30 years, only 6 percent of the sentences attracted a sentence of six years and one attracted a sentence of 12 years. The majority of the sentences appear to be in the range of 36 to 48 months. The schedule as to the minimum and fixed terms shows that in respect of the same number of cases, that is 71, the highest minimum term which was imposed in 3 percent of cases was 48 months subject to one exception of eight years in one case. The majority of the minimum terms fell within the range of 18 months to 30 months. 27 Schedules in respect of multiple counts, form 1 matters, priors of the same type, pleas of guilty with an accused aged 21 to 30 years show that the maximum full-term imposed was one of five years and that that was imposed in one case. The sample, however, was relatively small, there being only 12 cases. The minimum and fixed terms schedule reveals a maximum of 30 months, minimum or fixed term. That was imposed in two cases or 17 percent of cases. 28 The judge correctly identified the problem in this case as being the multiplicity of the offences and that has to be coupled with the value of the property stolen. Complaint was made that the judge did not refer to the Local Court being able to deal with some of the matters but that is a matter of no consequence in the context of this case. 29 The sentence of eight years imposed on count 6, (the offence of break enter and steal of 31 March 2000), was manifestly excessive especially bearing in mind that the value of the property stolen was $7,445. The judge's statement that if he were dealing with that matter alone he would select a sentence of three and a half years is sound. Such a sentence would be within the permissible range. 30 In concluding that this Court should intervene, I have not overlooked the submissions of the Crown that when regard is had to the total criminality the sentences were not excessive but I am unable to agree with that submission. 31 On resentencing, the applicant relied on his affidavit of 2 August 2001 and it is pleasing to note that progress in rehabilitation is being made. He also relied on the affidavit of Mary Speirs Williams of 6 August 2001 which includes not only the certificates of courses done by the applicant but also the letter of his mother which indicates again that progress is being made by the applicant whilst in custody. 32 There are special circumstances. They are to be found in the youth of the applicant and his need for rehabilitation. 33 In all the circumstances it is my opinion that this Court should resentence the applicant in the following manner. Leave to appeal against the sentences should be granted. The appeal against the fixed term sentence of three years for each of the break, enter and steal counts, being counts 1 to 5 should be dismissed. The appeal against the sentence of eight years on the break, enter and steal count of 31 March 2000 (count 6) should be allowed and the sentence quashed. In lieu of the sentence imposed the applicant should be sentenced to imprisonment for six years commencing on 31 March 2000 with a non-parole period of three years and 9 months commencing that day and expiring on the 29 December 2003. This sentence is to be served concurrently with the other sentences. 34 DOWD J: I agree with the orders proposed by Justice Smart and generally with his reasons therefor. The orders of the Court will be as proposed by Justice Smart. ******** 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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