New South Wales Court of Criminal Appeal CITATION : Regina v Englebert Adami [2001] NSWCCA 247 FILE NUMBER(S) : CCA 60264/00 HEARING DATE(S) : 22 June 2001 JUDGMENT DATE : 22 June 2001 PARTIES : Regina v Englebert Adami JUDGMENT OF : Simpson J at 1 & 31; Smart AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/41/0051 LOWER COURT JUDICIAL Phelan DCJ OFFICER : COUNSEL : (A) In Person (C) D M L Woodburne SOLICITORS : (A) In Person (C) S E O'Connor CATCHWORDS : Sentencing - parity - partial concurrency of sentences on disparate offences deprives applicant of a justifiable sense of grievance LEGISLATION CITED : Crimes Act 1900 CASES CITED: Regina v Houvardis (2000) NSWCCA 203 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60264/00 SIMPSON J SMART AJ Friday, 22 June 2001 REGINA v ENGLEBERT ADAMI JUDGMENT 1 SIMPSON J : : Smart AJ will deliver the first judgment. 2 SMART AJ : Englebert Adami seeks leave to appeal from the District Court against the severity of a sentence of imprisonment of two years eight months with a non-parole period of two years for the offence of accessory after the fact to break, enter and steal, taking into account the offence of being a passenger in a conveyance taken without the consent of the owner. 3 While the maximum penalty for the offence of break, enter and steal is imprisonment for fourteen years, that for being an accessory after the fact is one of five years (see ss 112 and 350 of the Crimes Act 1900 ). The property stolen in the present case had a value of about $60,000. 4 Early on the morning of 11 October 1999 there was a break-in into a large industrial factory at Moss Vale. Substantial quantities of goods and equipment were removed and placed in a white utility and a car. The utility was driven to Mr Proudley's home at Oak Flats. Mr David Proudley and the applicant were in the utility at one stage. 5 At about 4am they unloaded the stolen property and placed it in the Proudley garage, or close to it. Later that day some of the property was removed and disposed of. This happened again on 12 October 1999. 6 Late on 11 October 1999 Proudley was arrested at Albion Park with a quantity of tools in the boot of his vehicle, identified as being part of the stolen property. 7 On the evening of 13 October 1999 a search warrant was executed at Proudley's home and further stolen property was recovered. Police attended at the applicant's home and found further items stolen from the factory. When questioned, the applicant initially stated he had been asked by Proudley to store the property at the applicant's home. 8 The applicant was arrested on 13 October 1999 at 9.10pm. On the previous day he had his long hair cut and his moustache removed. The white utility was located at Oak Flats, a short distance from the home of Proudley and that of the applicant. 9 The applicant was initially charged with break, enter and steal, goods in custody and steal motor vehicle. Apparently these charges could not be proved so the applicant was charged with being an accessory after the fact and the charge taken into account was foreshadowed. 10 The judge found that the applicant pleaded guilty at a comparatively early stage to the charge of accessory after the fact. The judge noted that on 12 October 1999 Proudley claimed he had bought the subject items a week before but that it was clear that the items from the factory had only been removed the day before. In his second interview, on 13 October 1999, Proudley tended to nominate the applicant as the principal offender. 11 Proudley was born on 23 October 1968 while the applicant was born on 7 October 1961 and was thus seven years older than Proudley. 12 The applicant first came before the Local Court in 1982 for driving offences of a substantial nature. In 1984 he was dealt with for a series of minor offences and goods in custody. In 1994 he was sentenced to imprisonment for a minimum term of two years with an additional term of sixteen months for receiving. There were other offences taken into account but I do not have the details of these. 13 The applicant received concurrent sentences of imprisonment for four other dishonesty offences and those sentences ranged from eighteen months to two years, being fixed terms. 14 In 1999 there was a further driving offence and three dishonesty offences for which the applicant was ordered to perform 150 hours community service. 15 On 7 April 2000 the applicant was sentenced for some major driving offences for which he received a fixed term of nine months. He was also imprisoned for three months for stealing and assault. On each of two counts of take or be carried in a conveyance, he was sentenced to imprisonment for fifteen months with a non-parole period of twelve months, to commence on 12 February 2000. 16 The judge dated the sentence he imposed from 8 April 2000. Thus, about ten months of the sentence the judge imposed was concurrent with the sentences imposed in the Local Court. Effectively the applicant will only serve a head sentence of one year and ten months and a non-parole period of fourteen months for the offence of accessory after the fact. The justification for the sentences being partially concurrent with the Local Court sentences is not readily apparent, as they were separate matters. 17 The applicant experienced a normal, stable upbringing until his father became a quadriplegic as a result of a motor vehicle accident. The applicant left school at sixteen years of age after obtaining his School Certificate. He completed his apprenticeship as an electrician and has mostly been employed in occupations related to his electrical training. He was last gainfully employed in the latter half of 1998. 18 The applicant lived in a de facto relationship with a lady prior to their separation in October 1999. He suffered from a significant drug problem and that placed a strain on the relationship. He admitted to the Probation and Parole officer that he had not sought assistance to overcome his drug dependence while at liberty. He expressed disinterest in a residential drug rehabilitation program but stated that he would seek counselling. The officer thought the level of commitment of the applicant to overcome his drug dependence was a matter of conjecture. The judge noted that the applicant reasserted in court that he did not want to go into drug rehabilitation. 19 The judge was satisfied that the applicant was significantly involved in what took place and that his role as an accessory after the fact was an active one. There was abundant evidence to support this conclusion. 20 The judge found that the applicant had the continued support of his family. The judge said that the applicant recognised that his offences were drug-related but seemed reluctant to actively pursue any rehabilitation course. The applicant saw himself as capable of rehabilitating himself. That is always problematic. The judge said, "I do not make a finding of special circumstances". 21 Proudley was sentenced by Goldring DCJ on 18 August 2000 for the offence of break, enter and steal property at Moss Vale on 11 October 1999, taking into account a charge of failure to appear. Proudley also pleaded guilty. 22 Goldring DCJ was persuaded, on the evidence before him, which would not have included any evidence from the applicant, that the applicant was the moving party behind the commission of the offence and a co-offender. 23 Goldring DCJ held that no question of parity arose. First, Proudley had not been to gaol before and had only one previous offence, albeit break, enter and steal in about 1990, for which he was placed on a recognisance. The applicant's record was much worse. 24 Secondly, there were particular psychological factors at work in Proudley's case which amounted to special circumstances. Proudley had experienced significant difficulties in his life. He also had a significant drug problem. Proudley needed extensive support and supervision and was not adverse to accepting it. Thirdly, There is a significant age gap between Proudley and the applicant. 25 Fourthly, the subjective features of Proudley were more compelling than those of the applicant. 26 Fourth, the applicant had been released to perform community service and was doing so when the offence was committed. Absent any question of parity imposed upon the applicant for being an accessory after the fact to a major break, enter and steal and being deeply involved was well within the permissible range. While an accessory before the fact is liable to the same punishment as the principal offender, an accessory after the fact is not. Further, an accessory before the fact may be more culpable than the principal if the accessory is the instigator and author of the offence ( Regina v Houvardas (2000) NSW CCA 203 is an example). The position of an accessory after the fact is different. That is underlined by the much lesser maximum penalty for being an accessory after the fact. 27 While I accept that there are significant differences between the position of Proudley and that of the applicant, there has to be some correlation between the sentences on the two men. If it were not for the fact the sentence imposed on the applicant was partially concurrent with the sentences imposed in the Local Court for quite separate offences, intervention would probably have been required. However, as the effective sentence was one of twenty-two months and the effective non-parole period was fourteen months, and there are significant differences between the position of Proudley and the applicant, the sentence imposed on the applicant does not give rise to a justifiable sense of grievance. 28 At the hearing today Mr Adami told the Court that he had served most of his sentence in protective custody. He said that he had signed himself into protective custody on 28 April 2000 for threats arising out of events which had happened outside the gaol. The Corrective Services officers present in court were able to confirm from Departmental records that the applicant had signed himself into protective custody on 28 April 2000. 29 This is, of course, a matter that arises after sentence. It is not usual for this Court, except in a limited number of cases, to receive evidence of what happens after sentencing. We do not know the full facts which gave rise to the protective custody and the applicant signing himself in, nor do we know the background to the matters that gave rise to his signing himself in on 28 April 2000. 30 In all the circumstances, while I would grant leave to appeal against the severity of the sentence, I would dismiss the appeal. 31 SIMPSON J : I agree. The orders of the Court will be as proposed by Smart AJ. ******** 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.