New South Wales Court of Criminal Appeal CITATION : R v Buhagiar [2001] NSWCCA 376 FILE NUMBER(S) : CCA 60373/00 HEARING DATE(S) : 8/8/2001 JUDGMENT DATE : 8 August 2001 PARTIES : Regina Scott James Buhagiar JUDGMENT OF : Dowd J at 1; Smart AJ at 20 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0342 LOWER COURT JUDICIAL Williams DCJ OFFICER : COUNSEL : Mr RJ Button- Applicant Ms DML Woodburne- Crown SOLICITORS : Mr DJ Humphreys- Applicant Mr SE O'Connor- Crown CATCHWORDS : Appeal against severity of sentence - Break, enter and steal - Guily plea at earliest opportunity - Application of Ellis principle LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 CASES CITED: R v Ellis (1986) 6 NSWLR 603. R v Winchester (1992) 58 A Crim R 345. DECISION : 1. Appeal dismissed; and 2. Appeal to leave granted. IN THE COURT OF CRIMINAL APPEAL 60373/00 DOWD J SMART AJ 8 August 2001 Regina v Scott James BUHAGIAR JUDGMENT 1 DOWD J: The applicant, Scott Buhagiar, applied for leave to appeal against the severity of a sentence imposed by His Honour, Williams DCJ in the Sydney District Court on 31 May 2000, in respect of the conviction contrary to s112(2) of the Crimes Act 1900 ('the Act'), recorded as a plea of guilty to a charge of break, enter and steal, which offence carries a maximum penalty of twenty years imprisonment. 2 The applicant was, at the time, in custody on other matters. He was imprisoned for a period of four years, commencing on 25 December 1999 expiring on 24 December 2003, with a non-parole period of three years to expire on 24 December 2002. 3 The admissions, which led to the offence, occurred on 25 February 2000. The Learned Sentencing Judge has in fact given him two months credit for time served, although it does not appear on the evidence before us in this Court, in respect of this offence. Forty-six months is therefore the effective total sentence, and thirty-four months the effective non-parole period. 4 The facts may be briefly stated. The applicant and a co-offender broke into and entered a remote farm property at Holgate. The circumstances of aggravation being an element of the offence was the fact that the applicant was in company. The parties had first knocked on the door, and there being no response, they broke into the house. Whilst the offenders were inside the house they came upon a young twenty-three year old man coming out of the bedroom. He was ordered by them to lay on the ground and his head was covered with a towel. He was then asked about whether there were guns on the premises, which he denied, except for a BB gun. A number of articles were stolen from the house. 5 The victim was asked to provide tape that was used to bind him. The victim was threatened that he would be bashed with a heavy Mag type light. He was kept for some period, tied up with the tape, and some serious threats were made against him and in relation to his family. 6 The applicant was arrested in August 1999 on other matters, and although not a suspect on this particular matter, indicated that he wished to provide information about a number of matters. In an interview with police, the applicant admitted that it was he who taped the victim, and told the police that he was not aware when he entered the house that the victim was present. The applicant was charged and pleaded guilty in the Local Court, and he was then committed for sentence to the District Court. 7 The applicant was twenty-five years old when he was sentenced; he is now twenty-six years. At the time of the subject offence, he was on parole for an offence of break, enter and steal. He had previous offences of break, enter and steal, stealing a motor vehicle as a child and minor matters, but there were a number of them. 8 In October 1998, the applicant was convicted and sentenced on various matters, the longest of which was a break, enter and steal offence for a period of six months, with an additional term of three months, which expired on 1 July 1999. 9 The applicant had had association with other persons involved in criminal offences. He was an abuser of alcohol and amphetamine. The applicant had been raised for most of his life by his father's sister, who will continue to support him, his father having disappeared from his life. 10 The applicant pleaded guilty at the earliest opportunity, and the Learned Sentencing Judge accepted that had it not been for his volunteering information, that this matter may have been difficult for the police to prove an association between the applicant and the offences, and for these reasons, His Honour said he was entitled to a full discount. 11 It was the way in which His Honour expressed the discount that gave rise to the first of the grounds of appeal, which I will deal with shortly. His Honour, on sentencing, found a number of aggravating features, the first was that the offence was committed whilst he was still on parole. The second was that the offence was carried out in company, and that there was deprivation of the victim's liberty for some period, and that threats were made, although no other violence was used other than the fact of being tied up. His Honour said that the victim must have been in considerable fear for a fairly lengthy period. His Honour took into account assistance that had been provided and the fact that he did not have to give evidence. 12 The first ground of appeal was that the Learned Sentencing Judge failed to apply the principle in R v Ellis (1986) 6 NSWLR 603 at 604. The second ground was that in all the circumstances, even if the Ellis factor had been taken into account, that the sentence was manifestly excessive. 13 In His Honour's Remarks on Sentence, His Honour at p 5 said: "I also accept that had it not been for his volunteering of information in this matter, it may well have been very difficult for the police to prove an association between himself and these particular offences. For these reasons he is entitled to get a full discount in accordance with Winchester's case." 14 His Honour in fact identified the factors entitling him to a discount in terms of Ellis's case, but His Honour somewhat implicitly has expressed it to be a discount in R v Winchester (1992) 58 A Crim R 345. 15 His Honour at p7 of the Remarks on Sentencing said: "I am prepared to accept that he provided assistance to the police in regard to this matter when he did not have to and that if he is bringing all these other matters into account it may well be a case that his stated decision to now turn over a new leaf is a true one." Later on p7 he says: "In my view taking all those matters into account, giving an appropriate discount for the plea of guilty and the assistance offered, it seems to me that the appropriate sentence is one of four years imprisonment." 16 His Honour did not quantify the discount as he was not obliged to do so for the assistance provided, which in this case is the Ellis entitlement. 17 As to the manifest severity, it is put by Mr Button, on behalf of the applicant, that the sentence is not reflective of a proper full discount in terms of Ellis, that having taken into account the plea of guilty that four years is manifestly severe. 18 It seems to me that the starting point, however, for a matter of this severity, is firstly, for someone who is on conditional release in respect of some offence, and someone who carried out the offence, is a serious factor which I have referred to, makes this a very serious offence. These are not factors, which in terms of disharmony would take it to a higher offence, but rather circumstances which the Court has to consider as relevant circumstances, in the commission of the offence. Taking a starting point of the order of six-and-a-half to seven years, the reduction for a plea of guilty and a further reduction for the Ellis factor, in my view, would mean that a proper sentence would in fact have been of the order of four years, which is more than the forty-six months here imposed. 19 In my view, His Honour, in expressing the discount in the way that His Honour has, notwithstanding that he has indicated a consciousness of the volunteering of information, has in fact erred in the application of the Ellis principle. However, in considering the matters which the Court has to consider, I am of the view that notwithstanding the error shown by His Honour, that in considering the matters the Court is required to under s 6(3) of the Criminal Appeal Act 1912, I do not consider that the Court should quash the sentence, and therefore the orders that I would propose are in the light of the error that leave to appeal be granted but the appeal should be dismissed. 20 SMART AJ: I agree. The starting point for the offence in question must be a full term sentence of six to seven years. That is because of the serious features which attended the commission of the offence to which Dowd J has referred. Once this is taken as the starting point, it is apparent that the applicant has received all the discounts to which he is entitled. 21 DOWD J: The orders of the Court will be as I have proposed. oOo 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.