New South Wales Court of Criminal Appeal CITATION : Regina v Andreassen [2001] NSWCCA 246 FILE NUMBER(S) : CCA 60248/00 HEARING DATE(S) : 27/06/01 JUDGMENT DATE : 27 June 2001 PARTIES : Regina v Robert Andreassen JUDGMENT OF : Barr J at 18; Howie J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/51/0032 LOWER COURT JUDICIAL Twigg DCJ OFFICER : COUNSEL : M.C. Grogan - Crown Applicant in person SOLICITORS : S.E. O'Connor - Crown Applicant in person CATCHWORDS : Criminal Law - Sentence - guilty plea - no matter of principle CASES CITED: R v Thompson and Houlton (2000) 49 NSWLR 383 DECISION : Leave to appeal granted, appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60248/00 BARR J HOWIE J WEDNESDAY 27 JUNE 2001 REGINA V ROBERT ANDREASSEN JUDGMENT 1 HOWIE J: The applicant, who appears before this Court in person, seeks leave to appeal against sentences imposed upon him by Judge Kinchington QC. On 11 April 2000 his Honour sentenced the applicant on two counts of break enter and steal to imprisonment for 3 years and 9 months with a non parole period of 21 months. The sentence was to commence on 30 January 2000 and the applicant is eligible for release to parole on 29 October 2001. The maximum penalty for each of the offences to which the applicant pleaded guilty was 14 years. 2 The facts can be briefly stated. Late in the evening of 20 January 2000 the applicant was seen walking through a caravan park carrying a television set. He also attempted to detach a lock from a bicycle. The owner of the bike witnessed this act and yelled out at the applicant who then walked away. 3 Police were summoned but they were unable to find the applicant. However, they located a television set and a caravan stove near one of the cabins. They also noticed that the side window of one of the cabins was open and the flyscreen had been removed. On inspection of the cabin it was found that the internal cupboard doors were open. The applicant was then seen leaving the caravan park and he was stopped by police. When it was put to him that he had stolen a television set and a stove, the applicant denied it. He was then arrested and declined to participate in an interview. The applicant was well-affected by intoxicating liquor at the time of his arrest. The television set had been removed from the cabin that had been inspected by police and the stove had been taken from a caravan. 4 As his Honour the sentencing judge remarked, the offences were not of the most serious nature. They could have been dealt with in the Local Court. However, the applicant, who is aged 33 years, has a record for offences of dishonesty dating from 1978 and, apparently, it was for this reason that he was committed for sentence to the District Court. However, at the time he committed these offences the applicant was in breach of bail in that he had failed to appear at the Local Court to answer charges of stealing. It also seems that he was subject to a good behaviour bond, although the applicant did not believe that the bond was still current, but that was for a driving matter and had been breached on a number of occasions without action being taken by the Local Court. The applicant had been released from custody about 3 months before his arrest for these offences. 5 The first ground of appeal relied upon by the applicant is that the sentencing judge did not give sufficient recognition to his plea of guilty. His Honour did mention the fact that the applicant had pleaded guilty but said no more. In particular, his Honour did not mention the fact that he was taking the plea into account or to what extent. The applicant had pleaded guilty before the Local Court and, therefore, would be entitled to a discount of about 25 per cent on the utilitarian basis recognised in the decision of this Court in R v Thompson and Houlton (2000) 49 NSWLR 383. The total sentence imposed by his Honour was 3 years and 9 months, which if a discount of 25 per cent had been allowed on initial sentence, that would indicate a starting sentence of 5 years. In order to determine whether that starting sentence was too severe, regard must be had to the other features of the case and other complaints made by the applicant. 6 The sentencing judge described the applicant's record as being "dreadful" and indicated that he agreed with the decision of the prosecution not to allow the applicant to be dealt with in the Local Court. In his submission before us, the applicant himself described his record as "appalling". 7 The applicant's criminal record comprises 33 appearances in the Children's, Local and District Courts for offences of dishonesty, violence, traffic matters and the possession of prohibited drugs. He was sentenced to imprisonment for offences of larceny of motor vehicles and a break and enter with intent in 1987. Thereafter, he has received a number of short gaol sentences chiefly for offences of larceny and traffic matters until 1993. From that year until 1997 the applicant committed only two offences both of a very minor nature. In 1997 he was sentenced to imprisonment for stealing a motor vehicle and traffic matters. Between 1997 and 2000, there are numerous convictions mainly for traffic matters and on two occasions he received a short gaol sentence. 8 Although the applicant's record does him little credit, there are very few offences of any great seriousness. Many of the offences of dishonesty are for stealing motor vehicles. The applicant has only once before been charged with a break, enter and steal offence and that was in 1978. Those were his first offences and were dealt with in the Children's Court by way of a good behaviour bond. The applicant might be described as a thief rather than a house-breaker. The applicant has only once before appeared in the District Court for sentence. Most of the offences for which the applicant has been convicted were dealt with by way of fine or short gaol sentences of a few months. Since 1988 he has never served more than six months in custody. The longest period he has ever served was 12 months in 1987. 9 The applicant appears to live an itinerant life-style and has had a significant alcohol and drug abuse problem for many years. He has had the benefit of supervision from the probation service on a number of occasions but always falls back into his criminal way of life notwithstanding the continued support of his mother. In the proceedings before Judge Kinchington it was indicated that his mother would not be able to provide him with accommodation. However, in a letter placed before us, his mother indicated that on the release of the applicant from custody she may be able to accommodate him for a short period until he finds alternative premises in which to live. 10 The applicant explained his offending on this occasion as a result of his being heavily intoxicated. When asked about contrition, he told the probation officer who prepared the pre-sentence report, "Its not me at all. I am not proud of it at all. Its quite foolish". In light of the absence of offences of this nature in his criminal record, there may be some truth in what he said. 11 There is some reference in the pre-sentence report to the fact that his mother was concerned about his mental health, and the probation officer thought that a mental health assessment was warranted. One of the applicant's grounds of appeal that he raised both in material that he forwarded to this Court and before the appeal was listed today, and material which was placed before the court today, concerned the fact there was no mental health assessment made before he was sentenced by Kinchington QC DCJ. This appears to have been chiefly because of difficulties in the gaol system which caused delays both in the pre-sentence report being prepared and ultimately in the failure to have his mental health assessed. However, the applicant was represented by experienced counsel and clearly it was decided not to obtain such an assessment before sentence was imposed. Judge Kinchington was aware of the possibility of some psychiatric condition that needed to be investigated, he expressly referred to it and it was one of the factors that led him to find that special circumstances existed in the present case, which enabled him to impose a lesser non-parole period than he might have otherwise have done. In my view there was no miscarriage of justice occasioned by the absence of any psychiatric or psychological assessment prior to sentence. 12 The applicant complains that the sentencing judge imposed a heavier sentence than was otherwise appropriate because his Honour indicated that the applicant was institutionalised. The applicant, in material placed before us, seeks to indicate, by reference to the periods he was in custody and the periods at large, that any reference by his Honour to the applicant being institutionalised was wrong. However, what his Honour said was: "You are well on the way to becoming institutionalised in the sense that if you do not do something for yourself you will be before the court within a very short time of your release from any term of imprisonment that I subject you to. His Honour was merely by those remarks attempting to make it clear to the applicant that he had to take responsibility for his conduct and seek to alter his life-style or he would find himself committing further offences and being returned to custody as a consequence. 13 There are other statements made by his Honour during the course of his sentencing remarks about which the applicant complains on the basis that in some way the sentencing Judge had pre-judged him. The applicant has unfortunately misunderstood what his Honour was endeavouring to convey by these remarks. His Honour was trying to bring home to the applicant that he had been given the advantage of a finding of special circumstances notwithstanding his criminal record and his breaches of conditional liberty in the past and that he should make good use of the opportunity being presented to him. Judge Kinchington was simply stressing to the applicant that he had to use the benefit of the longer period on parole which the sentence provided to him in order to address his problems or he would find himself serving longer periods in custody. 14 Although the total sentence is in my view at the very top of the range for offences of the nature committed by the applicant, in light of the fact that both offences arose from the same course of criminal conduct, I do not believe it was excessive having regard to the aggravating feature of the applicant being on bail. 15 The applicant was fortunate in all the circumstances that he received the benefit of a non-parole period set as low as 21 months. There had to be a significant element of specific deterrence in the sentence imposed upon the applicant and any lesser period in custody would not in my view have adequately reflected that matter. Certainly I would not impose any lesser non-parole period if it had been necessary to re-sentence the applicant. 16 Although the applicant has raised matters in relation to what has occurred since he was sentenced by Judge Kinchington, and in particular the misfortune that his father died while the applicant was in custody, unfortunately I can see no error in what his Honour did or said in his remarks on sentence. In my view the sentence is not manifestly excessive, particularly in light of the lenient non-parole period that was fixed. Therefore, there is no occasion for this Court to consider the material placed before it by the applicant on the basis that it may have been necessary to resentence him. 17 In those circumstances, there being no error, the application for appeal should be granted but the appeal should be dismissed. 18 BARR J: I agree. The orders of the Court are as proposed by Howie J. ************ 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.