New South Wales Court of Criminal Appeal CITATION : R v FAWNS [2001] NSWCCA 27 revised - 12/03/2001 FILE NUMBER(S) : CCA 60179 of 2000 HEARING DATE(S) : 19 February 2001 JUDGMENT DATE : 19 February 2001 PARTIES : Regina Darren Ashley FAWNS JUDGMENT OF : Grove J at 15; Hulme J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1207 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER : COUNSEL : Crown: E Wilkins Appellant: C Lyons SOLICITORS : Crown: SE O'Connor Appellant DJ Humphreys DECISION : Appeal dismissed - 2 - IN THE COURT OF CRIMINAL APPEAL No: 60179/00 GROVE J HULME J Monday, 19 February 2001 REGINA -v- Darren Ashley FAWNS JUDGMENT 1 HULME J : On 21 March 2000 thousand this applicant for leave to appeal was sentenced by O'Reilly DCJ to minimum and additional terms each of 18 months imprisonment on a charge under s154A of the Crimes Act of stealing a motor vehicle. The minimum term was directed to commence on that day. The maximum penalty prescribed by the section is imprisonment for 5 years. 2 His Honour found special circumstances arising from the fact that the applicant had a severe heroin habit and on his Honour's view would need significant supervision upon his release. 3 The applicant had prior to 21 March spent some 9 months in custody. At least part of this period was for breach of parole and his Honour declined to back date the commencing date of sentence. 4 On the previous day the applicant had been indicted on the charge presently under consideration and also on five others. To all he pleaded not guilty, although it is fair to say there seems to have been no significant challenge during the evidence which followed on the car stealing charge. He pleaded guilty to that charge at the commencement of the second day of his trial. His Honour ultimately directed a verdict in his favour on the other five. 5 The basis of the application for leave it seems is that the sentence was excessive. In support of this proposition it was submitted that if the matter had stood alone the strong probability is that the Director of Public Prosecutions would have elected for the matter to be dealt with in the Local Court where the maximum penalty which could have been imposed was 2 years. Although his Honour's remarks recognise that the matter could have been dealt with in the Local Court, he did not refer to the limit on penalty to which I have referred. Furthermore, his Honour did not indicate that he took the applicant's plea of guilty into account in his favour. 6 There was no dispute by the Crown that the fact the matter would have been dealt with in the Local Court was a relevant consideration in the exercise of the sentencing discretion. Nor was it in issue that the cases reveal that that circumstance can, rather than should, be a matter of mitigation. It is unfortunate that his Honour did not mention this second aspect of the availability of the Local Court for it does raise the question whether his Honour had regard to all relevant considerations. With less force the same may be said of his Honour's failure to refer at greater length than he did to the applicant's plea but given the fact he was driving the stolen vehicle at the time, provided no reasonable explanation for doing so and when his guilt was clear beyond any reasonable possibility of argument, his plea was really entitled to negligible weight. 7 It may be accepted that statistics put before this Court demonstrate that for offences of this nature the applicant's sentence was very high. The Court was taken to the remarks of the Chief Justice in R v Bloomfield (1998) 44 NSWLR page 734 concerning the use to which statistics may commonly be put. There are, however, other remarks as to the use of them in other cases including remarks to the effect that sometimes the statistics make one wonder whether the Courts have given adequate attention to the penalties prescribed by Parliament for particular offences. Whilst it is relevant for the Court to have regard to the statistics for the offence for which the applicant was convicted, it is also important to look at what, for me, are more important considerations, namely, what Parliament has said rather than what a group of Judges in other cases, the facts of which are not before us, have said and to the applicant's record. 8 He was born on 13 November 1973. His first offence of breaking, entering and stealing was committed no later than in August 1991. Since then he has been dealt with by various courts on no less than eight occasions, putting aside appeals. His offences have included one for which he was dealt with in April 1992 for using a motor vehicle without the consent of the owner, one for which he was dealt with in June 1993 of stealing a motor vehicle and at least eight other offences of dishonesty. 9 In December 1994 he was sentenced to imprisonment for minimum and additional terms each of 2 years on a charge of assault with intent to rob whilst armed. He was on parole in respect of that offence at the time he committed the one with which the Court is presently concerned. 10 As the authorities make clear, the commission of an offence whilst on parole or otherwise on conditional liberty is an aggravating feature. This Court also pointed out that the theft of motor vehicles is "a serious offence which costs this community dear and costs those who have had their cars stolen dear in terms of worry as well as possible financial loss" - see R v Malik (unreported) CCA 22 July 1991. Of course, in the passage just quoted reference was directed to the theft of a motor vehicle whereas the applicant was charged with the somewhat lesser offence under s154A. Nevertheless, similar considerations apply, at most differing only in degree. 11 When the vehicle which the applicant stole was recovered it suffered damage over $3,000. 12 Having regard to his record, it is apparent that the applicant's criminality in this case is not, to adopt what the High Court said in Veen 164 CLR 465 at 477, "an uncharacteristic aberration "but rather he" has manifested in his commission of the instant offence a continuing attitude of disobedience of the law". In such a case retribution and protection of society may all indicate that a more severe penalty is warranted. 13 In the light of his record, any proper sentence imposed on the applicant had, in my view, to be in the upper half of the 5 year range prescribed by s154A. Indeed, if he committed the offence again I would take a great deal of persuasion that anything less than the 5 year maximum prescribed by Parliament was appropriate. 14 In my view, the application for leave to appeal should be refused. 15 GROVE J : I agree with the order proposed by Hulme J and that will be the order of the Court. 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.