New South Wales Court of Criminal Appeal CITATION : R.V. CARLAW [2001] NSWCCA 479 FILE NUMBER(S) : CCA 60148/01 HEARING DATE(S) : 23 November 2001 JUDGMENT DATE : 23 November 2001 PARTIES : Lindsay Paul CARLAW - Appellant Regina - Respondent JUDGMENT OF : Barr J at 1; Adams J at 27 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/61/0173 LOWER COURT JUDICIAL Coleman DCJ QC OFFICER : COUNSEL : Ms L. Flannery for the Appellant Ms E.A. Wilkins for the Crown SOLICITORS : D.J. Humphreys for the appellant S.E.O'Connor for the Crown DECISION : See Judgment at Paragraph 26 IN THE COURT OF CRIMINAL APPEAL 60148/01 Barr J Adams J 23 November 2001 Regina v Lindsay Paul Carlaw Judgment 1 Barr J: The applicant, Lindsay Paul Carlaw, seeks leave to appeal against sentences imposed upon him in the District Court. He pleaded guilty in the Local Court at Broken Hill to two charges, one of stealing in a dwelling house and one of aggravated breaking, entering and committing an indictable offence. 2 He maintained his plea of guilty in the District Court and asked the Court in sentencing him to take into account one offence of causing malicious damage to property and one of self administration of cannabis. The maximum penalty for the stealing charge was seven years' imprisonment and the maximum penalty for the aggravated breaking and entering was twenty years' imprisonment. 3 Coleman DCJ QC sentenced him on the first count to imprisonment for two years commencing on 28 February 2001 and expiring on 27 February 2003. For the second offence his Honour sentenced the applicant to a term of imprisonment of four years and two months commencing on 28 February 2002 and expiring on 27 April 2006. His Honour set a non-parole period of two years and nine months expiring on 27 November 2004. In imposing the second sentence his Honour took into account the two scheduled offences. 4 The first offence and one of the scheduled offences took place on 7 October 2000 at a motel in the city of Broken Hill. The applicant and another man looked over the motel and cars parked in its yard in order to see what they might be able to steal. During the early hours of the morning they found an occupied room whose door had been propped open by means of a chair, apparently because the air-conditioning system had broken down. The applicant stole inside, removed handbags, took money from them and replaced them. That was the first count. 5 They tried to break into a car in the motel yard in order to steal a wallet that they had seen inside. They damaged a window in doing so and set off the car alarm. That made them run way and their attempt at theft failed. That was the malicious damage offence which was included on the schedule. 6 On the following night the applicant and his companion went to a private house and found the back door closed but unlocked. They entered the house, searched and found purses and a bag. Again money was taken and the bags returned to their original position. 7 A few days later the police searched the applicant's premises and found things connecting him with the offences. They also found things ordinarily used by smokers of cannabis. 8 At first, the applicant denied having committed any of the offences, but soon changed his story and, as I have said, pleaded guilty in the Local Court. 9 As part of his confessions he admitted to smoking cannabis. That was the second item on the schedule. 10 The applicant was almost thirty years of age when he came before his Honour for sentencing. He had a long history, which had started when he was eleven years of age, of breaking and entering and stealing, and committing kindred offences. 11 Most recently he had appeared before the Local Court at Broken Hill and had been sentenced to a number of concurrent terms of imprisonment, the longest of which was a six month term for breaking and entering a building and committing a felony, namely stealing, which was due to expire on 25 April 2001. 12 The applicant had spent sixteen days in custody on these offences alone before his Honour imposed sentence. 13 His Honour received evidence from the applicant's sister and otherwise about his personal circumstances. He was married with three children. He was prevented by his criminal record from obtaining work, and that frustrated him. During his latest prison term he had voluntarily undertaken a literacy course, a drug and alcohol course and a hygiene and first aid course. He had undergone urine tests, and had a recommendation from the gaol counsellor to undertake further courses as they became available. 14 His Honour thought that the evidence showed that the applicant was trying to turn himself around. The applicant asked for a short non-parole period so that his efforts at rehabilitation could continue in the community. His Honour concluded that the applicant would benefit from a longer period of supervision for that purpose. Longer, that is, than one quarter of the head sentence his Honour ultimately imposed. The effect of his Honour's making the sentences partly cumulative was a head sentence of five years two months with a non-parole period of three years nine months. The sentence made no allowance for the sixteen days pre-sentence custody but contained a hidden benefit of about eight weeks, the period by which it overlapped the sentence the applicant was already serving. 15 It was submitted first that the offences were not serious ones of their kind, and had been committed during a single bout of criminality. There should therefore have been a greater degree of concurrency and a resulting effective sentence towards the bottom of the available range. However, the period of five years two months was in the upper range of sentences for all aggravated breaking entering and stealing offences. 16 Judicial Commission statistics show that one hundred and thirty eight such cases were dealt with in the higher courts to December 2000. The range of head sentences was from one to ten years. Eighty-seven per cent of the head sentences ranged between two and six years. The highest distribution of sentences was in the range three to four years. Only twenty-one per cent of the head sentences exceeded five years. 17 Employing the care with which this Court entertains submissions based upon Judicial Commission statistics, I think that the demonstrated statistical base is significant and that the statistics support the applicant's argument. 18 It seems to me that the effective sentence of five years two months was so high as to be outside his Honour's proper range of sentencing discretion. 19 The second submission was that his Honour made no allowance for the sixteen days' pre-sentence custody. As his Honour made no mention of the matter, and did not backdate the sentence as would ordinarily have been appropriate, I infer that he overlooked it. However, I would not have disturbed the sentence on this ground, if only because there was no mention either of the partial concurrence of the Local Court sentence for a period which exceeded sixteen days. 20 By his third ground of appeal the applicant asserted that his Honour failed to give effect to his finding that the applicant's need for supervision to promote his rehabilitation warranted the extension of the parole period at the expense of the non-parole period. 21 Ignoring the Local Court sentence, the accumulated head sentence was five years two months. The parole period of one year five months was 27.4 per cent of the head sentence. Taking into account the accumulated four months of the Local Court sentence the head sentence was five years and six months, of which the parole period was 25.8 per cent. 22 I think that this ground of appeal has been made good. What must have happened, I think, is that his Honour overlooked the effect of accumulation on the proportion of the effective parole period. The accumulation of sentences will, of course, often of itself give rise to the need to adjust the non-parole and parole periods of the last accumulated sentence. I think that the Court should disturb the sentences. 23 The Court received evidence about the progress of the applicant in the Corrective Services system. Since February 2001 he has been working as a cook, and taking his turn in doing the rotated job of head cook. He has completed a number of courses. Most significantly, I think, he has undertaken an alcohol and other drugs awareness course and has completed early modules in long-term courses in reading and writing and oral communication. He has also commenced a longer-term course in food preparation. He says that since coming into custody he has been doing as much as possible because he wants to make a difference this time. 24 Although the applicant's criminal history is long and dismal, and although he has spent a number of periods of time in custody, the sentences imposed upon him in recent times have generally not been long ones. 25 In 1991 he was sentenced to a minimum term of three years for attempting to escape from lawful custody, but since serving that sentence he has only served very short periods of custody with which the Local Court sentence of six months was long by comparison. He has children now, of course, and says that he has never been separated from them for so long before. 26 The evidence shows that the applicant is probably telling the truth when he says he wants to make a difference this time. I think that he should be given a chance to do so. I propose the following orders - (1) Grant leave to appeal and allow the appeal. (2) Quash the sentences appealed from, and in lieu impose the following sentences - On the first count imprisonment for a period of two years commencing on 12 February 2001 and expiring on 11 February 2003. On the second count, and taking into account the two scheduled offences, imprisonment for three years commencing on 12 February 2001 and expiring on 11 February 2004. On each count fix a non-parole period of one year six months expiring on 11 August 2002, and direct the release of the applicant to parole on that day. The reasons for fixing a parole period exceeding one quarter of the head sentence of the second count are the applicant's need for an extended period of supervision on parole, and the partial accumulation of that sentence upon the Local Court sentence. It will be apparent from my proposed orders that the effect I would wish to achieve would be an effective sentence of three years with a non-parole period of 18 months. 27 ADAMS J: I agree. 28 BARR J: The orders of the Court are therefore as I have proposed. 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.