Reported Decision : 121 A Crim R 25 New South Wales Court of Criminal Appeal CITATION : Regina v Shaw [2001] NSWCCA 44 FILE NUMBER(S) : CCA 60465/99 HEARING DATE(S) : 20/02/01 JUDGMENT DATE : 20 February 2001 PARTIES : Regina v Christopher James Shaw JUDGMENT OF : Mason P at 39; Whealy J at 1; Howie J at 40 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0148 LOWER COURT JUDICIAL Kirkham DCJ OFFICER : COUNSEL : C. K. Maxwell QC - Crown J. Gillespie - Appellant SOLICITORS : S. E. O'Connor - DPP ------ - Appellant Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Crimes (Sentencing) Procedure 1999 R v Hill (1999) NSWCCA 140 R v Thomson and R v Houlton (2000) 49 NSWLR 383 at 419 CASES CITED: R v Gordon (1994) 71 A Crim R 459 at 465 R v Day (1998) 100 A Crim R 275 Re Attorney General's Application No 1 Under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnston (1999) 48 NSWLR 327 at 337, para 48 Pearce v The Queen (1998) 72 ALJR 1416 DECISION : Leave be granted. Appeal allowed. The sentence imposed by his Honour Judge Kirkham on 3 June 1999 be set aside and in lieu thereof a sentence be imposed in relation to each count of imprisonment for a term of 4 years with a non parole period of 2-1/2 years, commencing on 1 March 1999 and expiring on 31 August 2001. The applicant will be eligible for release on parole on 1 September 2001. IN THE COURT OF CRIMINAL APPEAL 60465/99 MASON P WHEALY J HOWIE J TUESDAY 20 February 2001 REGINA v Christopher James SHAW JUDGMENT 1 WHEALY J: The applicant, Christopher James Shaw, seeks leave to appeal against the severity of sentence imposed by Kirkham DCJ on 3 June 1999 at Gosford District Court. The applicant had entered pleas of guilty at Gosford Local Court on 9 March 1999 to three counts of break enter and steal. This offence carries a maximum penalty of fourteen years imprisonment (Crimes Act s 112(1)). 2 His Honour was also asked to take into account three additional matters on a Form 1, namely, offences of drive in manner dangerous, unlicensed driver, and self administer prohibited drug. 3 His Honour did take those matters into account and he sentenced the applicant to penal servitude for a period of five years and four months on each count. In each case a minimum term of four years, commencing 1 March 1999 was imposed, together with an additional term of one year and four months. 4 The facts in relation to each break enter and steal were unremarkable. On 30 January 1999, during the middle of the day, the applicant broke into a property at 72 Ocean Beach Road, Woy Woy. He obtained entry by removing a sliding glass window at the front of the house. He stole a computer and printer, a VCR, clothing, fishing equipment, blankets and a quilt. He sold the property in Cabramatta that day, using the money to buy heroin. 5 On 5 January 1999 he broke into a property in Alpha Road, Woy Woy. On this occasion a front bedroom window had been accessed by removal of an exterior screen and the sliding window behind it. The applicant stole a VCR, a CD player and a number of CDs. Again, proceeds from the sale of the stolen property were used to buy heroin. 6 The third offence occurred on 2 February 1999. The applicant broke into a property at 59 Phegan Street, Woy Woy. On this occasion a bathroom window was forced open. A sound system, television set, jewellery and cash were taken. As before, the resultant moneys were used to support the applicant's drug habit. 7 The applicant's fingerprints were matched with fingerprints taken at the Alpha Road and Ocean Beach properties. According to the police fact sheets the value of the property stolen in the three offences was $3,448. 8 The applicant was arrested on 1 March 1999 in these circumstances: the police were conducting surveillance in the Ettalong area. Apparently they were looking for the applicant, who they wanted to interview in relation to two of the break and steal offences and also in relation to a warrant arising out of the revocation of his parole. At approximately 9.39 am the applicant, who did not hold a driver's licence, was sighted sitting in the driver's seat of motor vehicle VMH-404 in Broken Bay Road, Ettalong. The police stopped in front of the applicant's vehicle. 9 Police spoke to him. The applicant reversed and accelerated off in an easterly direction in Broken Bay Road. There was a police pursuit at fairly high speeds and the applicant did, in the course of the pursuit, ignored some give way signs, eventually losing control of the vehicle, whereupon he abandoned the vehicle and fled into a nearby property. Police shortly afterwards arrested him. He was conveyed to Gosford Police Station where he was interviewed electronically. He made full admissions in relation to all matters put to him. 10 The Form 1 matters dealt with by his Honour were those arising from the pursuit and arrest, as I have described it. 11 From the time of his arrest the applicant was serving the balance of his parole, which was due to expire on 2 December 2000. His parole had been revoked on 20 January 1999 for failure to comply with conditions of the parole order. 12 The consequence of this is that there was present, as the sentencing judge noted, a significant aggravating feature of the offences, namely, that they were committed while the applicant was on parole. 13 The applicant's criminal history followed a not uncommon pattern. He had apparently become addicted to heroin at the age of seventeen and remained so at the time of his arrest. There had been an unsuccessful attempt to treat him at Odyssey House in 1997. As to his criminal history, his Honour noted as follows: "The prisoner has quite a lengthy criminal history for someone so young. He was born on 2 March 1976, and he is twenty-three years of age now. However, his activities since 1992 have been followed by appearances in the Children's Court for taking a conveyance without consent; In the Woy Woy Local Court and other Local Courts for stealing, receiving, street offences, steal from dwelling, break enter and steal, quite a significant number thereof; disposing of stolen property, breach of recognizance, self administering of prohibited drug and break, enter and steal on 16 June 1998, for which he received twelve months imprisonment. He has had the benefit of supervision of the Probation and Parole Service in the past and recognizances, but none of those seem to have been of any longterm assistance to him. Indeed, the Department of Corrective Services, Probation and Parole Service through Ms Faber of the Gosford district office notes in her report of 3 June that the prisoner had been the subject of numerous supervised recognizances during the past four years. He has had a poor response to supervision due to failing to comply with the directions of the service, to enter into drug and alcohol treatment et cetera and the prisoner's continued re-offending has often resulted in breach action taken by the department. The report notes that the prisoner is currently serving a balance of his parole which expires on 2 December 2000 and it had been revoked on 20 January 1999 for failing to comply with the conditions of the parole order. It is noted by Miss Faber that the prisoner is a man who has struggled to address his issues relating to his drug and alcohol use and whilst he indicates that he is willing to attend drug and alcohol treatment, he did not appear to be genuinely motivated. The report goes on that the prisoner had been given many opportunities to address these issues, but he appeared to lack insight into the seriousness of his situation and was thus, therefore, not assessed for any community based options." 14 The applicant's subjective circumstances included that he was the father of two young children and, not unnaturally, felt keenly that his children would be deprived of their father by a term of imprisonment. The children's mother had a drug problem and was seeking rehabilitation at the time of sentencing. The children were being looked after by other members of the family. 15 The applicant had been a promising young man before his addiction. He was a keen footballer. He left school at fifteen. However, he was not qualified in any trade. When he was released from prison in 1998 he was in a bad state of depression as a result of separating from his girlfriend, the mother of the two boys. He started taking drugs to cope with the depression, and this led to his living on the streets and in a friend's home. He soon increased his use of heroin and this, in turn, led to the commission of the offences in 1999. 16 Since his arrest on 1 March 1999 he had attempted to confront his problems by taking the following steps. Firstly, he made an appointment to see a psychologist for assessment and counselling, although apparently this involved a lengthy waiting period, which meant this had not occurred at the time of sentence. Secondly, he had regular discussions with the Salvation Army Chaplain about his problems and future. 17 Thirdly, he attended the drug and alcohol courses. Fourthly, he had undertaken work in the carpentry shop in prison and was anxious to try and learn a trade. The applicant said at the end of a note which he gave to the sentencing judge in evidence, "I will continue to receive help from now on." 18 There were letters of support from his mother, grandmother, sister, and maternal grandmother of his children. All these stress the loving relationship between the applicant and his children. 19 It seems to me his Honour appears to have taken all those matters into account. His Honour, however, concluded, at page 6 of his reasons for sentence: "As I have indicated, the legislature and Courts of Appeal have made it very plain that offences of this nature must be severely dealt with to discourage them and others from committing these sorts of offences for whatever reason. Of course, the fact that one is addicted to a substance like heroin is no excuse for ongoing criminal activity. There must be a deterrent feature in the sentence, not only for the prisoner but a general deterrence to the community as a whole so that persons of like mind may well be deterred from committing these sorts of offences." 20 The essential submission is that the sentence is manifestly excessive. In particular, the following matters were stressed: 1. Insufficient value was given to the early plea and to the fact that full admissions were made. 2. The value of the property stolen in relation to each offence placed the matters at the lower end of the scale. Reference is made to schedule 1 table 2, offences under the Criminal Procedure Act 1986 . 3. There was an absence of any planning or skill in the commission of the offences, and in this context it was also submitted that no consideration was given to the fact that the offences were non-violent and non-threatening in their nature. 4. Insufficient weight was given to the applicant's subjective circumstances, including his depressed mental state upon his release from custody, and the asserted hardship in relation to the rearing of his children if he were in prison for any length of time. 21 In support of these submissions a range of decisions has been relied upon by the applicant's counsel. These are mainly decisions by two judge constitutions of this Court. They are pointed to in support of the proposition that the present sentences were excessive. In addition, the Crown has taken the Court to statistics published by the Judicial Commission in respect of its argument that his Honour's sentences, though high, were within a permissible range. 22 First, as to the statistics, these need to be approached with some caution, since in the model most appropriate to the present situation, the sample relates to eight cases only. Secondly, it is difficult to discern from the statistics the wide range of differing circumstances which are often, in this type of offence, found to exist. So too with the decisions to which the Court has been referred is there the need to recognise this factor. 23 The circumstances involved in those important decisions are so disparate from each other, that they afford, in my opinion, at best, only limited assistance. This much can be said. The Crown quite properly conceded that the Judicial Commission's statistics indicate that the applicant's sentence was towards the upper end of the range. Similarly, in the decisions analysed by the applicant's counsel in his written submissions, a number of which involved criminality clearly higher than that involved in the present appeal, none involved head sentences as high as in the present sentences, although those in the case of R v Hill (1999) NSWCCA 140, admittedly a worse case, came close. 24 The applicant was entitled, in my opinion, to a significant discount for his early plea and for the admissions made to the police and before the sentencing judge (s 22 of the Crimes (Sentencing) Procedure Act 1999 and the guideline decision in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 419). 25 His Honour's sentence predated the guideline judgment. Nevertheless the guideline judgment recognises that a discount rate of 25 per cent would be appropriate in a case such as the present. The availability of such a significant discount, when measured against the fact the sentences imposed were, on statistical and comparative analysis, at or towards the very top of the range, lead me to the conclusion the sentences imposed were excessive. 26 In so deciding, I have not overlooked the presence of the aggravating factor mentioned by the sentencing judge, namely, the fact these offences were committed while the applicant was on parole. Nor have I overlooked the need, as his Honour correctly identified it, to impose sentences which reflect the prevalence of this particular crime in the community, and which should appropriately reflect aspects of general deterrence (R v Gordon (1994) 71 A Crim R 459 at 465). 27 I should add, in deference to the careful submissions prepared on behalf of the applicant, I do not consider his Honour erred by failing to take into account the subjective circumstances of the applicant or by failing to give weight to these matters. It seems to me his Honour gave proper consideration to each of those matters and, in my opinion, he was entitled to come to the conclusion he did in relation to those subjective matters. 28 As to the position of the applicant's two children, it is, as I understand it, necessary to demonstrate exceptional circumstances where hardship of children is pointed to as a significant factor in reducing an otherwise appropriate sentence (R v Day (1998) 100 A Crim R 275. This was not such a case. 29 Nevertheless I have come to the conclusion that the sentences were too high. When regard is had to the matters referred to in the guideline judgment (Re Attorney General's Application (No 1) Under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnston (1999) 48 NSWLR 327 at 337, paragraph 48), this becomes clear. I should add this guideline judgment was published some months after his Honour's decision in this case, and his Honour did not have the benefit of its guidance. At paragraph 48 Grove J listed the following matters as matters which the Court might take into account as enhancing and reflecting the seriousness of the quantum of sentence to be imposed if any of those factors were present: (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the Criminal Procedure Act ). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s 105A91)(f), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s 105A(1)(c), (d) and (e)) (xi) That force was used or threatened (other than by means of an offensive weapon, or instrument - a defined circumstance of aggravation: Crimes Act s 105A(1)(a). 30 It is said that factors (i), (iii), (vi), (viii) have application to the present applicant. The other matters, all of which might be thought to warrant the imposition of a sentence towards the top of the range, were, in my opinion, markedly absent from the present situation. The offences of themselves were, for the reasons I have already advanced, relatively unexceptional. In particular, the offences appear to have been sporadic, rather than planned in any way. Certainly, they were executed inefficiently and haphazardly with the applicant leaving his fingerprints at all three properties. 31 The occupants of each of the premises were away at the time the offences were committed. The value of the stolen property was, in comparative terms, not specially significant. There was no vandalism or trauma sustained by the victims themselves. 32 There has been much debate in the course of the appeal, particularly in the written submissions, as to the extent to which it might be said the applicant has achieved, or is likely to achieve, rehabilitation. The sentencing judge correctly pointed to the rather "gloomy" outlook predicated by the author of the pre-sentence report. On the other hand, there is perhaps sufficient in the materials stressed on behalf of the applicant today to warrant the Court's belief that rehabilitation is achievable in the case of the applicant. 33 The concerns the applicant's family have for him, his own concerns for the children, and the applicant's steps taken since he was imprisoned on 1 March 1999 lead me to the conclusion this Court should take a cautiously positive view towards the prisoner's rehabilitation in the process of re-sentencing him. In addition, I would be prepared to find special circumstances so as to warrant a variation in the statutory proportion between the non-parole period and the overall term of the sentence. 34 My reasons in relation to special circumstances, shortly stated, are: 1. The heightened possibility of rehabilitation discussed above, although it should be stressed to the applicant that this may be the last chance he may have for such rehabilitation. 2. His age. He is certainly, at the age of twenty-four, not beyond redemption by any means. 3. The desirability of providing the applicant with an incentive to demonstrate to the parole authorities when the time arrives that he should be released to parole. 35 It is necessary for this Court, in re-sentencing the prisoner, to take into account those matters specified in the Form 1. I do so, noting that all those matters occurred either on the day of arrest or the day before arrest. I have regard to the applicant's plea at the earliest opportunity, and his admissions to the investigating police and before the Court. 36 I take into account additionally, those matters I have identified as mitigating and aggravating the objective seriousness of the offences. I have also taken into account the applicant's subjective circumstances as I have outlined them, and the additional matters which have been placed before the Court today, particularly in relation to the health of his mother. 37 It is my opinion that a sentence of four years with a non parole period of eighteen months is warranted, in substitution for the sentence imposed by his Honour. There is an argument of some force available to suggest 1 March 1999 was an inappropriate date to commence sentence. After all, the applicant had been arrested on that day as a consequence of a warrant issued after revocation of his parole. In all the circumstances, however, I have determined that the best interests of justice would be served if the sentence is to commence on 1 March 1999. 38 The orders I propose are: 1. That leave be granted. 2. The appeal be allowed. 3. The sentence imposed by his Honour Judge Kirkham of 3 June 1999 be set aside and in lieu thereof a sentence be imposed in relation to each count of imprisonment for a term of four years with a non parole period of two and a half years, commencing on 1 March 1999 and expiring on 31 August 2001. The applicant will be eligible for release on parole on 1 September 2001. 39 MASON P: I agree. 40 HOWIE J: I also agree. 41 MASON P: The order of the Court will be as indicated. ********** 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.