New South Wales Court of Criminal Appeal CITATION : R v Pitt [2001] NSWCCA 156 FILE NUMBER(S) : CCA 60382/00 HEARING DATE(S) : 20 April 2001 JUDGMENT DATE : 14 May 2001 PARTIES : Regina Edward Pitt JUDGMENT OF : Wood CJ at CL at 1; Sully J at 43 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL PR Bell DCJ OFFICER : COUNSEL : C: L.Lamprati A: C. Craigie SOLICITORS : S E O'Connor Sydney ALS CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - malicious damage by fire - malicious damage - whether insufficient weight given to applicant's background - whether insufficient weight given to plea of guilty - whether sentence outside range - whether sentence manifestly excessive CASES CITED: Crimes Act 1900 ss 195 (a), 195 (b) Crimes (Sentencing Procedure) Act 1999 s 22 DECISION : 1) Leave to appeal granted; (2) Appeal dismissed. - 14 - IN THE COURT OF CRIMINAL APPEAL No. 60382 of 2000 WOOD CJ at CL SULLY J MONDAY 14th MAY 2001 Regina v Edward Arthur PITT The applicant pleaded guilty to offences of malicious damage by fire; s 195(b) Crimes Act and malicious damage; s 195(a) Crimes Act. He was sentenced to six years imprisonment for the first offence with a non parole period of three and a half years; and to a concurrent fixed term of two years for the second offence. The applicant seeks leave to appeal against the sentence on the grounds that (1) his Honour failed to give sufficient weight to the applicant's background; (2) his Honour failed to give sufficient weight to the plea of guilty; (3) the sentence was outside the range and manifestly excessive. HELD: (Appeal dismissed): Ground 1: His Honour failed to give sufficient weight to the applicant's background The evidence concerning the applicant's background was limited. There was nothing of an exceptional kind in the Aboriginality or upbringing of the applicant that called for particular mitigation of sentence. As pointed out in Ceissman there is a danger of misinterpreting Fernando as a decision justifying special leniency on account of an offender's Aboriginality. It is a mistake to rely on Fernando as authority for the proposition that Aboriginal heritage of itself is a mitigating circumstance. Ceissman (2001) NSWCCA 73; Powell (2000) NSWCCA 108 applied. Fernando (1992) 76 A Crim R 58 distinguished. Ground 2: Insufficient weight was given to the plea of guilty The plea of guilty was timely and the applicant was entitled to the utilitarian value of that factor, the charges were, however, unanswerable and the sentencing Judge expressly stated that he had given a discount for the plea as required by s 22 Crimes (Sentencing Procedure) Act 1999. Thomson and Houlten (2000) 49 NSWLR 383 applied. Ground 3: Sentence outside range Although the applicant had an extensive criminal history and had committed a serious offence, when taking into account the circumstances in which the offences occurred, the plea, and the applicant's contrition, the sentence standing alone would have been outside the appropriate range. At the time the applicant appeared for sentence, however, his Honour had only partial information concerning two offences that were outstanding, and which led to him subsequently being sentenced imprisonment for two years and three months with a non parole period of one year and three months, to be served concurrently with the sentence imposed by Bell DCJ. When the true effect of the combined sentencing orders is taken into account, along with the totality of the criminality involved and the fact that the malicious damage offences were committed by the applicant when he was on bail, no sentence other than that imposed by Bell DCJ was warranted. Richards (1981) 2 NSWLR 464 ORDERS PROPOSED: (1) Leave to appeal granted. (2) Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL No. 60382/00 WOOD CJ AT CL SULLY J MONDAY 14TH MAY 2001 Regina v Edward Arthur PITT JUDGMENT 1 WOOD CJ AT CL: The applicant was sentenced on 14 June 2000, by His Honour Judge P.R. Bell, following his plea of guilty to the offences of malicious damage by fire (S 195(b) Crimes Act 1900) and of malicious damage (S195(a) Crimes Act). He received a term of imprisonment of six years for the first offence, for which the maximum penalty is imprisonment for ten years, with a non parole period of three and a half years to expire on 30 June 2003; and a concurrent fixed term of two years for the second offence for which the maximum penalty is imprisonment for five years. The sentences and the non parole period were fixed to date from 1 January 2000, being the date on which he was taken into custody. He now seeks leave to appeal against sentence. Facts 2 The applicant was, at the time of the offences, in a de facto relationship with Susan Briggs. She was the occupier of a house owned by the Department of Housing at Moree. At about 10pm. on 31 December 1999, she went to the Moree RSL Club, where she had arranged to meet the applicant to celebrate New Years Eve. He arrived there later in an angry state, affected by alcohol and amphetamines. He confronted her with questions as to where she had been and who she had been with, apparently suspecting her of having been guilty of sexual infidelity. 3 He returned to the house where, at about 3am, he began to smash items such as stereo equipment and other household objects. He then set fire to a curtain. The flames spread and occasioned considerable damage to the premises, the cost of the repairs to which were estimated to be in the order of $19,000. The house, it would seem, was only saved due to the efforts of the local Fire Brigade. 4 When interviewed by police later that morning the applicant made full admissions as to his responsibility in causing the damage and in lighting the fire. He attributed his conduct to the fact that he had returned home, and had become suspicious when he found that his de facto was not there. He claimed to have consumed a considerable quantity of beer and bourbon during the day preceding the offence. In later reports taken from him he added that he had also used cannabis during the day and evening preceding the offence. 5 In an interview with Dr. Bettesworth, the applicant explained, as he had to police, that he had become frustrated, angry and jealous, and that it was in this state that he smashed the household items and set the fire. This his Honour accepted to have been the case. 6 The applicant demonstrated remorse for his conduct both in his statement to police and in the apologies which he had offered to Ms Briggs. She remained supportive of him notwithstanding the offences, and gave evidence to the effect that there had been no occasion on which physical violence had been directed towards her by the applicant. The evidence in this regard was accepted. 7 His Honour also accepted that the alcohol and drugs consumed by the applicant meant that he had acted out of "spontaneous frustration" and not with any element of planning or premeditation. Subjective circumstances 8 These showed that the applicant was aged thirty at the time of the offences. According to a history provided to Dr. Bettesworth, he had grown up on a mission in Moree, where he had suffered at the hands of a drunken and violent father. He left school after repeating Year 8, and had an irregular work history. 9 He also had a verified history of self harm and of suicide attempts, including some which occurred during the extensive periods of imprisonment which he had served. 10 His criminal antecedents dated back to 1983, and were lengthy. They included convictions for offences of stealing, several convictions for assault occasioning actual bodily harm, malicious damage, malicious wounding, and assaults of prison officers, as well as convictions for street offences. As a consequence of this record he had spent a considerable period of time in gaol, where he had also accumulated an unsatisfactory record for misbehaviour. His record regrettably was one of violence, of repetitive offending and of disregard for law and order. 11 There were other charges outstanding when he appeared for sentence, as was disclosed in the pre sentence report. I shall return to their significance for this application. 12 His Honour accepted that the case was one where special circumstances existed. These arose out of the applicant's background, particularly from the fact that he had spent much of his life in institutions or corrective centres, and from his need for a larger than normal period of readjustment in order to return to the community. His Honour also noted his need for counselling in relation to his drug taking and his fluctuating depressive moods. 13 In coming to the sentence which was imposed his Honour summarised the matter in terms, which could hardly be questioned, as follows: "… in an act of frustration and pique with self-induced reduced powers of reasoning but still in charge of his faculties he set about a course of smashing up property and setting fire to a house. The matters are objectively very, very serious. His long record is something that does not increase the penalty but it does mean that he is not entitled to as much consideration as would be a person who did not possess a lengthy criminal record. The fact of his contrition and his plea of guilty are matters to be taken into account, and to be accorded a discount in relation to the matter of sentence, and that will be accorded to him." Failure to give sufficient weight to the applicant's background 14 It was submitted first that his Honour failed to give sufficient weight to the background of the applicant, and in particular to the degree of privation which he had suffered in his developmental years. The failure of his Honour to make express reference to that history was said to constitute an error of law. Reliance in that regard was placed upon the observations of Smart AJ in Powell [2000] NSW CCA 108, where his Honour said: "15 Violent acts in domestic situations must be treated with real seriousness. The principal attack of counsel for the applicant was that the judge had failed to consider the principles referred to in Fernando 76 A Crim R 58. It was the applicant's case that Fernando recognised that there could be cases where the background of an accused was of such a nature that the offences themselves should be seen in that context. Of particular importance in this case is the applicant growing up in an area where alcoholic consumption from an early age was the norm. The family background of the applicant was distressing and disadvantaged. … 17 The judge, while noting these submissions on behalf of counsel, did not herself embark upon any of the considerations referred to in Fernando . At no stage in her remarks does the judge mention or deal with the applicant's entrenched pattern of disadvantage and the effects of his unsatisfactory upbringing. No reference is made to Fernando or the later cases which followed it, nor does the judge purport to apply those principles. This was a case where those principle should have been applied. The valiant effort made by the Crown to suggest, in effect, that the judge applied the Fernando principles and, alternatively, that they had no weight in this case, cannot succeed. The applicant has established error and this Court must re sentence." 15 The difficulty with this submission is that the evidence concerning the applicant's background was quite limited. No evidence was led from the applicant or from his family concerning it. Dr. Allnutt's report, apart from noting the applicant's history of substance abuse, self harm and suicide attempts, was relevantly confined to the following observation: "He was born to a large aboriginal family of seven children, of which he was the eldest. He described a fairly good relationship with his mother but a difficult and conflictual relationship with his father, who he described as having difficulties with alcohol and who tended to express anger in an aggressive way towards the family, especially while in an intoxicated state. As a consequence he felt his upbringing was difficult. He maintained good relationships with his brothers and sisters during his developmental years, however he maintains little contact with them currently stating that they had grown apart. Both parents remained married throughout his life. He established relationships with extended family members, including his grandmother when he was younger, with whom he had a close relationship. He left school and did not pursue any tertiary education although he did do a carpentry course and has done some seasonal work. He has never had a regular occupation and (sic) states because he's been uneducated and unskilled. He first met his de facto at age 24 in Moree and the couple have been going out for two years. He noted that she has a child by another marriage and notes that they have a good relationship with arguments but no physical abuse between the two of them. He did not identify any significant problems in the relationship currently. She remained supportive of him, visiting him regularly. The couple plan to have a family and get married when he leaves prison. He noted an indifferent relationship between himself and her family and believes that her family may not be happy with him." 16 Dr. Bettesworth's report carried the matter only a little further, so far as she noted: "He is the eldest of seven children growing upon a mission in Moree. His father has always been employed, and is currently an Aboriginal Liaison Officer working for the Education Department. Edward's youngest sibling is now twenty. He says that two of his brothers have spent short periods in gaol, but none of his siblings have criminal records, or psychological problems such as he has. He said that he carries a huge resentment towards his father, who "came home drunk every night and flogged us." At the age of about sixteen, Edward retaliated against his father, after his father had broken Edward's nose. After this floggings of all the children ceased. Edward's father sustained a laceration to the scalp. Thus, this episode of violence had a positive result, in that he and his siblings were no longer bashed. Edward admits that "it was the one and only" episode of his violent behaviour, which led to anything which was other than negative. Edward told me that he has spent most of his life since the age of eighteen in gaol. Upon further questioning it seems that most of the serious assaults have been related to disputes between Edward's family, and other families." 17 While these reports did disclose some history of disadvantage and of an unsatisfactory upbringing, it was not of such an entrenched kind or degree as would minimise the applicant's resort to substance abuse or to criminal behaviour. 18 Dr. Bettesworth's diagnosis of a personality disorder with explosive and poor impulse control, which was supported by Dr. Allnutt's assessment that he has manifested a long history of impulsive and, at times, aggressive behaviour that had been compounded and aggravated by substance abuse, were consistent with the applicant's criminal antecedents. However, so far as I can see there was nothing of an exceptional kind, in the aboriginality or upbringing of the applicant, that called for any particular mitigation of sentence. Regrettably, his childhood experiences have been shared by many persons across a wide range of ethnic, social and racial backgrounds, and the present was not a case of an offender having been brought up within a wholly dysfunctional community that was dominated by substance abuse. 19 As I pointed out in Ceissman (2001) NSWCCA 73, there is a danger of misinterpreting Fernando (1992) 76 A Crim R 58 as a decision justifying special leniency on account of an offender's aboriginality. The error in that approach was recognised in Hickey NSWCCA 27 September 1994, where Simpson J noted that the first of the eight propositions stated by me in Fernando, was "that sentencing principles are not discriminatory in that they apply to all accused without differentiating by reason of the offender's membership of a particular racial or ethnic group." 20 In Powell, Simpson J similarly noted that it is a mistake to rely on Fernando as authority for a proposition that aboriginal heritage of itself is a mitigating circumstance, and warned that care must be taken to ensure that recognition of the social and economic problems that frequently attend aboriginal communities, and the principles stated in Fernando, do not have the unintended consequence of devaluing the effect of offences on victims. 21 What Fernando sought to do was to give recognition to the fact that disadvantages which arise out of membership of a particular group, which is economically, socially or otherwise deprived to a significant and systemic extent, may help to explain or throw light upon the particular offence and upon the individual circumstances of the offender. In that way an understanding of them may assist in the framing of an appropriate sentencing order that serves each of the punitive, rehabilitative and deterrent objects of sentencing. 22 In the present case his Honour expressly referred to the reports of Drs Allnutt and Bettesworth, to the applicant's history of substance abuse, and to the need for his problems to be addressed in the way identified by each of these medical witnesses. I am quite unpersuaded that, as a very experienced Judge, his Honour overlooked the histories which were identified in those reports. While the applicant's background and the unsatisfactory aspects of his bringing up were relevant to an understanding of his current situation, I am not persuaded that there were here present, to the requisite degree, the factors of the kind identified in Fernando that required mitigation of sentence, or that were not appropriately addressed by the reduction of the non-parole period. Insufficient weight to the plea of guilty 23 It was next submitted that his Honour gave insufficient weight to the early pleas of guilty which were offered at committal. Clearly they were timely and the applicant was entitled to the utilitarian benefit of that factor, as has since been explained in the decision of Thomson and Houlten (2000) 49 NSWLR 383, and for the independently demonstrated remorse. However, the charges were unanswerable, and his Honour expressly stated that he had given a discount for the plea, as was required by S22 of the Crimes (Sentencing Procedure) Act 1999. I am not persuaded that error of law was shown in the absence of any quantification of the discount. 24 This ground is, however, irretrievably bound up with the next ground, since it is appropriate to give consideration to whether both before and after discount, his Honour set a sentence that was outside the permissible range. That inevitably invites consideration of what might have been the sentence but for the plea, which in turn invites consideration of the question whether latent error has been shown. The sentence was outside the range 25 It was submitted, in this regard, that a sentence of imprisonment for six years for an unpremeditated setting fire to a house by a person who was intoxicated, who acted out of pique, who immediately confessed to his criminality, and who demonstrated genuine remorse, was manifestly excessive. 26 Counsel pointed to the fact that the sentence fell at the very top of the range for the S195(b) offence, as revealed by the statistics compiled by the Judicial Commission, in that only one of the eighty-two cases there sampled had attracted a full term of six years or more, and that, in no case involving a plea of guilty was there a full term in excess of five years. 27 The obvious weight of this submission needs to be considered in the light of the extensive criminal history of the applicant, and in the light of the fact that this was a particularly serious offence of its kind, that involved wanton damage to and disregard for, public housing. As such a considerable element of personal and general deterrence was called for, since it needs to be understood that resources for public housing are hard pressed, and that the diversion of funds for their replacement or for the repair of wanton damage, is only likely to disadvantage other persons in need. 28 Notwithstanding these considerations, the sentence imposed represented 60% of the maximum. The starting point, before taking into account the applicant's plea of guilty and contrition, must accordingly have been very close to the maximum, even though the offence was unpremeditated and committed in circumstances where, as his Honour pointed out, the applicant's powers of reasoning were reduced, albeit that such reduction was self induced. 29 It is always difficult to engage in a comparative exercise utilising the Judicial Commissions statistics, since they cover a very broad spectrum of objective and subjective cases. They provide a useful background, but otherwise they need to be considered with some circumspection. Particularly is that so in the case of a S195(b) offence, since it is an offence that is likely to include cases of children setting fires in a variety of circumstances, ranging from the very serious to the trivial, as well as incidents of deliberate destruction by adult offenders, involving serious premeditated criminality. 30 Nevertheless, it seems to me that, once the timely plea and contrition of the applicant are taken into account, along with the circumstances in which the offence was committed, the sentence was outside the range and that this Court should reconsider the matter. 31 This brings me to the additional circumstance, of which his Honour had only partial information, via the pre sentence report, concerning an offence that was outstanding at the time that the applicant appeared for sentence. Since we have to consider re-sentencing him by reference to principles of totality, and by reference to any sentence that the applicant is to be taken as serving, then we must take this additional matter into account. To fail to do so would be to risk the applicant being insufficiently punished either for the other offence, or for the one with which we are concerned. 32 The additional material available to us reveals that the applicant was sentenced by Bellear DCJ, in the District Court at Penrith, on 1 December 2000, for offences of using an offensive weapon with intent to prevent or hinder an investigation, and for assault. For the first offence, taking into account two other offences of malicious damage and assault, he was sentenced to two years seven months imprisonment to commence that day, with a non parole period of one year three months, to expire on 31 March 2002. For the assault he was sentenced to a concurrent fixed term of one year and four months. Each of these offences predated the offence dealt with by Bell DCJ, and each was serious. They were found by his Honour to have arisen out of the following circumstances: 33 On 31 July 1998, the prisoner and his younger brother, Shane Pitt, went to premises in Moree in search of one Athol Craigie. The premises they visited were those of his invalid brother, Frederick Craigie. The prisoner was armed with a rifle, Shane Pitt was armed with an iron bar and knife. While there, Shane Pitt struck the verandah post with the bar, causing it damage, and called out "We've come to kill Pappy (Athol Craigie)". 34 When the two offenders realised "Pappy" was not there, they walked off. In a vacant block nearby they confronted another brother of "Pappy", Noel Frederick Craigie. Shane Pitt held a knife to his throat; the present prisoner held his rifle. They questioned him as to "Pappy's" whereabouts, and at one stage Shane Pitt threatened to cut his throat. 35 While this was occurring, the three men were seen in the vacant block by Senior Constable Brooks. He challenged them, whereupon the prisoner raised his rifle and pointed it at the police officer. After another challenge he began to run. A final challenge was made to him to stop and surrender his firearm. He stopped, raised the firearm and pointed it towards the police officer, who drew his service pistol and discharged one round. The prisoner then decamped. His brother was arrested at the scene, and the prisoner surrendered himself to police later. 36 The offences were found to have arisen out of a family feud between the Pitts and the Craigies, but that provided no excuse for the criminality involved. As his Honour found, the offences were very serious objectively. 37 A discount of 20% for the plea and contrition were allowed against the sentence of three years six months, which his Honour considered appropriate. Somewhat favourably for the applicant, in an arithmetic sense, his Honour calculated this to result in a full term of two years and seven months. The non parole period, which was set at one year four months, represented 50% of the full term. 38 The sentences so imposed, including the non parole period, it can be seen were wholly subsumed within the full term and the non parole period set by Bell DCJ. While his Honour noted that the applicant was already serving a sentence, no mention was made of its terms, or of the facts giving rise to it, or of the principle of totality. 39 An additional circumstance emerges from this material, in that it is now apparent that the applicant was on bail for the 1998 offences which were subsequently dealt with by Bellear DCJ, when he committed the two S195 offences. That was a circumstance of considerable aggravation, particularly in the light of his record: Richards (1981) 2 NSWLR 464 at 465. 40 As a consequence of the sentences imposed by Bellear DCJ, which were in effect to be served wholly concurrently with that imposed by Bell DCJ, the effective non parole period served by the applicant exclusively in relation to the S195(b) offence, would be reduced from one of three years six months to one of two years and two months, made up of a period of eleven months between 1 January 2000 and 1 December 2000, and of an additional period of one year three months, from 1st April 2002 to 30 June 2003. The full term applicable to the S195(b) offence alone would correspondingly be reduced by the sentence imposed by Bellear DCJ from one of six years to one of three years five months. 41 When the true effect of the combined sentencing orders is taken into account and the totality of the criminality now revealed is taken into account, along with the fact that the two S195 offences were committed by the applicant while he was on bail for very serious offences, I am of the view that to now intervene, and to reduce the sentence imposed by Bell DCJ, would be to bring about a sentencing order that was manifestly inadequate and not warranted as a matter of law. 42 I would accordingly grant leave to appeal but would dismiss the appeal. 43 SULLY J: I agree with Wood CJ at CL. ********** 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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