REGINA v. ANDERSON [2001] NSWCCA 115

New South Wales Court of Criminal Appeal

CITATION : REGINA v. ANDERSON [2001] NSWCCA 115 FILE NUMBER(S) : CCA No. 60305 of 2000 HEARING DATE(S) : Friday 30 March 2001 JUDGMENT DATE : 30 March 2001

PARTIES : REGINA v. ANDERSON, David Frederick JUDGMENT OF : Wood CJ at CL at 1; Greg James J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1228; 99/21/1230 LOWER COURT JUDICIAL O'Reilly, DCJ. OFFICER :

COUNSEL : Crown: M.C. Marien App: In person SOLICITORS : Crown: S.E. O'Connor App: In person CATCHWORDS : Criminal law - sentence - appeal - failure to have regard to period in custody bail refused - otherwise no matter of principle - sentences and non-parole period backdated. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Ponfield & Ors [1999] NSWCCA 435 Pearce (1988) 194 CLR 610 DECISION : Application for leave to appeal granted; appeal allowed; sentences and non-parole periods varied so that all sentences and non-parole periods are to commence on 21.2.00 and in each case to expire 45 days earlier than stipulated by O'Reilly, DCJ.

IN THE COURT OF CRIMINAL APPEAL

No. 60305 of 2000 CORAM: WOOD, CJ. at CL. GREG JAMES, J. FRIDAY 30 MARCH 2001

REGINA v. DAVID FREDERICK ANDERSON

JUDGMENT

1 WOOD, CJ. at CL: I will ask Greg James, J. to deliver the first judgment. 2 GREG JAMES, J: This is an application for leave to appeal against sentences imposed by his Honour Judge O'Reilly, QC. in the District Court of New South Wales in consequence of the applicant having been found guilty by the verdict of a jury on a charge of break, enter and steal and his having pleaded guilty to two counts; one of larceny and the other of detain for advantage, an offence under s.90A of the Crimes Act 1900. The maximum penalty for the crime of break, enter and steal is imprisonment for 14 years. The maximum penalty for larceny is five years. The maximum penalty for the crime of detain for advantage in circumstances where the victim was not injured is 14 years. 3 In addition, the applicant asked there be taken into account two offences on a Form 1, viz., possession of a prohibited drug and entering enclosed lands without lawful excuse. 4 In respect of those crimes, his Honour imposed sentences of three years and six months to commence on 6 April 2000 and to expire on 5 October 2003 by way of a fixed term in respect of the first matter. On the second matter his Honour imposed on the first count a fixed term of two years and six months to commence on the same date as that provided for the sentence on the first matter. On the third count his Honour passed a sentence of seven years imprisonment to commence on the same commencement date, to expire on 5 April 2007. 5 In respect of those sentences his Honour imposed a non-parole period of five years and two months to commence on 6 April 2000 and to expire on 5 June 2005. 6 It will become of significance later to note that the applicant was arrested on 12 September 1999 in relation to the matter contained on the first indictment. Bail was refused and the applicant remained in custody until 27 October 1999 when, following a grant of bail in this court, he was released. 7 Shortly, the crimes the applicant committed were found by his Honour to have been attended with some degree of naivety on his part. Certainly, the explanation that he purported to give for the crimes of larceny and detaining was attended with, at least, naivety. He was one of a gang of three people who laid in wait for a bread vendor outside the bakery at about 4.15 am. The three people utilised the baker's access to the premises to detain him, tying him with electrical cord and frog marched him into the freezer where a pillow slip was put over his head. There was some utilisation of a gun. 8 His Honour found that the baker was under a considerable degree of apprehension, having had a loose rather than a written guarantee, as his Honour expressed it, that the assailants were reasonable men. The prisoner and the two others stole a large quantity of cigarettes and escaped. He was charged and committed for trial. 9 It was after that committal for trial and after a fresh indictment had been presented against him that he pleaded guilty to the offences with which he was then charged rather than armed robbery, of which he had stood charged previously. 10 His Honour had in his recital of the events in his remarks on sentence, after dealing with those matters, returned to events that had taken place at Agnes Banks on 12 September 1999. His Honour referred to circumstances whereby the applicant on that occasion was found to have participated with another man in stealing a cash register from a hairdressing business after throwing a brick through a window. They were apprehended when, having driven off with the cash register on the back of their vehicle, by coincidence, they came across a police investigation of another matter and in attempting to conceal the cash register, placed it under the car. 11 His Honour was of the view, not inappropriately it seems to me, that the two matters on the Form 1 were not really significant in the context of all the offences his Honour had to deal with. One of those matters involved the possession of a small amount of cannabis. The other involved entering premises at Agnes Banks after the secreting of the cash register under the vehicle to which I have already referred. These were premises the two men entered in order to hide. His Honour took those two matters into account. 12 He noted that the applicant was only 26 years of age, but referred to his appalling prior record of multiple convictions for dishonesty and offences relating to the taking of the property of others in circumstances such as showed the applicant has no regard for the normal considerations of honesty. His Honour remarked, "I deal with him really on the basis he has an unremitting record for crimes of dishonesty". 13 It was, however, accepted in the applicant's favour that there was little in his record to suggest violence. He appeared to have been basically unemployed, as appeared from the pre-sentence report that his Honour noted. He had a gambling problem and he expressed some remorse for what he had done to the baker, but no remorse in respect of the taking of the cash register. For the offences to which he had pleaded guilty, his Honour took that plea into account. 14 There was some discussion as to the seriousness of the offences the applicant had committed in the context of the decision of this court in Regina v. Ponfield & Ors [1999] NSWCCA 435 concerning guidelines for the offence of break, enter and steal. However, his Honour noted, and entirely appropriately, that at the time at which the prisoner committed the Agnes Banks break and enter the prisoner was on bail for the other matters. His Honour could detect nothing by way of genuine regret and remorse or steps towards substantial rehabilitation taken by the prisoner. 15 Structuring his sentence in accordance with, as his Honour expressed it, what the High Court said in Pearce v. The Queen (1988) 194 CLR 610, his Honour passed the sentences that I have referred to. 16 At the conclusion of his Honour's examination of the relevant matters there was some discussion with counsel appearing for the prisoner as to the appropriate commencement date of the sentences. It appears that notwithstanding the prisoner had been in custody, bail refused, for the period to which I have earlier referred, that matter was not brought to his Honour's attention at that point of time. So his Honour dated the sentence from the time at which the applicant had entered into custody at Penrith, he having pleaded guilty at Campbelltown and did not have, it appears to me, specific regard to that period in custody. 17 In my view, it will be necessary, subject to an examination of the other grounds of appeal, for us to have regard to that period in the disposition of this matter. 18 The applicant has appeared before us unrepresented. He has provided written submissions. Those submissions essentially suggest that he was unaware that the plea that he made to the offences of larceny and detain for advantage might produce the consequence of a more severe attitude being taken than might have been embraced by a simple plea to larceny. He has submitted that he did not understand that this meant that he was admitting that the victim was detained in a way which might attract a seven years gaol sentence. 19 He has specifically drawn attention to comparisons made by his Honour in his remarks on sentence and in argument with cases of abduction involving more severe violence. He wished to make it clear that he limited his appeal against the severity of the sentence imposed for the abduction conviction. 20 Notwithstanding that the applicant may not have been himself engaged in any serious violence of a particular kind to the victim, nonetheless, he participated fully in an offence which involved quite serious violence being inflicted upon the victim. The offence under s.90A is punishable by a higher maximum in the event that injury is occasioned to a victim. There is nothing advanced which would challenge the integrity of the plea. 21 His Honour does not appear to me to have fallen into any error in the way in which he dealt with the sentence on that matter or the sentences taken together in the context of the facts that his Honour properly found. I do not consider that any error has been shown in his Honour's disposition of the matter, excepting only his Honour's failure to take into account the period that the applicant has been in custody. 22 Indeed, on one argument, since the later offences were committed whilst the applicant was on bail for the former offence, extending to the applicant the benefit of the whole of that period is to be, to a degree, generous. 23 Nonetheless, I am of the view that sufficient has been shown such that the sentences should be varied for that reason and the non-parole period consequently varied in accordance with s.52 of the Crimes (Sentencing Procedure) Act 1999 by directing that all sentences are to commence not on the date stipulated by his Honour but on 21 February 2000 so that the sentences and non-parole period would commence on that date and in each case would expire 45 days earlier than that date his Honour had stipulated. 24 I would propose that to that extent the application for leave be granted, the appeal allowed and the sentences so varied. 25 WOOD, CJ. at CL: I agree. The orders of the court will be as have been proposed. ********