R v WATEGO [2001] NSWCCA 236

New South Wales Court of Criminal Appeal

CITATION : R v WATEGO [2001] NSWCCA 236 FILE NUMBER(S) : CCA 60591/00 HEARING DATE(S) : 25/06/2001 JUDGMENT DATE : 25 June 2001

PARTIES : REGINA v Benjamin Shane WATEGO JUDGMENT OF : Barr J at 1; Howie J at 24

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/41/0166 LOWER COURT JUDICIAL Goldring DCJ OFFICER :

COUNSEL : Crown: GE Smith Applicant: JS Andrews SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999, s 32 CASES CITED: R v Harrison [2001] NSWCCA 79 Pearce v The Queen [1998] HCA 57 DECISION : See para 21

IN THE COURT OF CRIMINAL APPEAL 60591/00

BARR J HOWIE J

Monday, 25 June 2001 REGINA v Benjamin Shane WATEGO JUDGMENT

1 BARR J: Benjamin Shane Watego seeks leave to appeal against a sentence imposed upon him in the District Court on 24 August 2000 by Goldring DCJ. His Honour sentenced the applicant for three offences of breaking, entering and stealing to concurrent sentences each of three years nine months and fixed on each a non-parole period of two years nine months. In imposing sentence his Honour took into account six other matters under the provisions of s 32 Crimes (Sentencing Procedure) Act 1999. His Honour made no distinction between the counts for sentencing purposes and did not state on which count those other matters were taken into account. 2 On 5 June 2000 the applicant was taken in a motor vehicle by one Leonie Harrison to house premises in Bulli. Whilst Harrison waited in the car the applicant broke in and stole a number of personal goods suitable for resale. Later on the same date Harrison drove the applicant to another house in the same district and he committed a similar offence there. On the following day Harrison drove him to a house at Coledale and waited for him whilst he broke in and stole items. As before, she drove him away, but police intercepted the car, acting on information they had received from a witness. In the car they found a large amount of electrical goods. 3 The applicant was arrested and taken to the police station where he admitted having committed the offence of 6 June and volunteered having committed the two offences on the previous day. The things stolen on 6 June were all recovered. The same cannot be said for the things stolen on the previous day. 4 The applicant pleaded guilty before the magistrate and was committed to the District Court for sentence. He confirmed his pleas of guilty before the sentencing judge and asked his Honour to take into account the six other offences. They were that on 5 January 2000 he had goods in his custody reasonably suspected of having been stolen, that on 10 January he committed a similar offence, that on 18 January he received goods worth less than $5,000, that on 20 March he committed two like offences and that on 17 April 2000 he stole goods worth less than $2,000. 5 His Honour noted the early plea of guilty and took into account the matters I have summarised. His Honour said but for the plea of guilty he would have sentenced the applicant to a period of five years' imprisonment but that he had deducted twenty-five percent for the plea. 6 The applicant has a long criminal history associated with an addiction to heroin which he developed early in his life. He was born on 25 July 1973 and was twenty-seven years of age when sentenced. From 1990 onwards he began to be found to have committed drug and associated property offences and offences of violence. From 1996 onwards he began to receive prison sentences. He had served a number of fixed terms up to May 1998 when he was sentenced to a minimum term of fifteen months for a number of counts of stealing and offences of dishonesty. The minimum term expired on 26 July 1999. The applicant went to live with a girlfriend in Wollongong after his release and things seemed to be going well there. Then she was arrested and sent to prison and the applicant reverted to his heroin habit and, of course, to the commission of property offences to fund it. 7 There are four grounds of appeal. The first is that his Honour failed to give effect to a finding that the circumstances justified a non-parole period shorter than three-quarters of the period of the sentence. 8 His Honour said this - In addition it seems to me that his background and condition mean that I should find special circumstances which would enable him to have a shorter non-parole period than would otherwise be the case and would enable him to have some supervision and support when he is released. 9 It is submitted that having made such a finding his Honour failed to achieve his stated aim by effectively extending the parole period by only about three weeks. The difference, it is submitted, is of such little practical consequence that his Honour must be taken to have erred in nominating the non-parole period or to have overlooked his stated intention. 10 In written submissions the Crown conceded that his Honour appeared to have overlooked his stated intention. I think the concession was appropriately made. I think that his Honour, under pressure of a busy list, did overlook his stated intention. The Court should therefore interfere and fix a new non-parole period. 11 The second ground of appeal asserts that the applicant has a justifiable sense of grievance by comparison between his sentences and those imposed on Harrison. Harrison was dealt with by a different judge and the Crown appealed against the sentences imposed on her. See R v Harrison (2001) NSWCCA 79. The Court of Criminal Appeal, allowing the Crown appeal, re-sentenced Harrison to imprisonment for three years with a non-parole period of eighteen months. 12 It is submitted that that result, bearing in mind the more serious criminal record of Harrison, gives rise to a justifiable sense of grievance on the part of applicant. 13 It may be accepted that Harrison's record was more serious than the applicant's but his was so bad that the difference is, to my mind, of little consequence. Of more importance is the fact that there were features of Harrison's case entitling her to be treated more leniently than the applicant. As the sentencing judge found in Harrison's case, and as is confirmed by the facts in the present application, this applicant was the moving party. It was he who committed the breakings and enterings and stealings whilst Harrison played a subsidiary role. Secondly, the criminality for which his Honour was obliged to sentence the applicant encompassed the nine offences I have summarised, whereas Harrison was sentenced only for two counts of break, enter and steal and three counts of stealing. That matter alone would make it inappropriate to use Harrison's sentence for comparison under a ground such as the present. 14 Finally the sentences imposed on Harrison were imposed in the Court of Criminal Appeal following a Crown appeal. Well understood principles require sentences imposed in those circumstances to be the most lenient reasonably possible in the circumstances. 15 In my opinion the applicant has no justifiable sense of grievance by comparison of his sentences with Harrison's. 16 The next ground of appeal complains that his Honour failed to give the applicant sufficient credit for his extensive co-operation with the police. It is submitted that much of his criminality would not have been able to be proved against the applicant unless he had made frank admissions. In the circumstances the twenty-five percent discount allowed by his Honour was insufficient. 17 I do not accept this submission. To a significant extent the applicant's admissions did no more than acknowledge he had no defence, for example, to the offence which he was committing at the time of his arrest and to the offences of possessing goods the possession of which he could not lawfully explain. His subsequent pleas of guilty were no more than a recognition of the inevitable. There was much to be said on the applicant's behalf for his volunteering other matters, something which his Honour acknowledged, but in my view these do not establish his Honour gave insufficient weight to the applicant's frankness. 18 The last ground of appeal complains that the sentences were manifestly excessive. It is submitted that the three offences occurred over two days and that his Honour started too high at five years before discounting for the pleas of guilty. 19 This submission is misconceived, in my opinion, because it overlooks entirely the criminality of the matters which the applicant asked his Honour to take into account. The offences so taken into account were committed over a period of four months. Given the overall criminality encompassed in the nine offences, a starting sentence of five years before application of the discount for the plea of guilty was well within the range of his Honour's proper sentencing discretion. 20 Material was put before the Court in case it should interfere with the sentence. It shows that the applicant is making substantial progress towards his rehabilitation. 21 I propose the following orders -