New South Wales Court of Criminal Appeal CITATION : Regina v O'Brien [2002] NSWCCA 411 FILE NUMBER(S) : CCA 60681/01 HEARING DATE(S) : 25 September 2002 JUDGMENT DATE : 25 September 2002 PARTIES : Regina v Benjamin William O'Brien JUDGMENT OF : Buddin J at 39; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0340 LOWER COURT JUDICIAL Naughton DCJ OFFICER : COUNSEL : (C) R Hulme (R) G W Turnbull SOLICITORS : (C) S E O'Connor (R) D J Humphreys CATCHWORDS : Error in taking into account strength of Crown case when assessing discount for plea of guilty. LEGISLATION CITED : Nil CASES CITED: Nil DECISION : Grant leave to appeal; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60681/01 BUDDIN J SMART AJ Thursday, 25 September 2002 REGINA v BENJAMIN WILLIAM O'BRIEN JUDGMENT 1. SMART AJ: The applicant, Benjamin William O'Brien, seeks leave to appeal against the following sentences imposed upon him in the District Court (Judge Naughton) pursuant to his pleas of guilty: 1. Drive conveyance taken 1 year from without consent of owner 9 August 2001 2. Use of an offensive 1 year from instrument to prevent 9 August 2002 lawful apprehension 3. Aggravated stealing 4 years from (maliciously inflicting 9 August 2003 actual bodily harm) with a non-parole period of 2 years On count 3, five other offences were taken into account. Facts 2. Count 1 - On 26 December 2000 the applicant stole a 1991 Holden Commodore Sedan from its parked position in Avon Road, Dee Why between 7 pm and 10 pm. When recovered it had been extensively damaged with necessary repairs costing about $4,000. 3. Count 2 - About 2.50 am on 1 January 2001 police observed a vehicle travelling on Queenscliff Road, Queenscliff. A high speed chase ensued. Ultimately, police in three vehicles stopped and blocked the applicant while he was driving the stolen car. He was forced to stop. 4. Without recounting all the details, the applicant accelerated harshly, causing the front of the stolen vehicle to collide with the near side of the police vehicle. The applicant continued to drive forward trying to ram the police vehicle out of the way. A police officer narrowly missed being crushed. 5. The applicant reversed the stolen vehicle into the police vehicle behind it. He accelerated harshly into the highway patrol vehicle, again attempting to ram it out of the way. A police officer was trapped between the two vehicles. The stolen vehicle became wedged against the highway patrol vehicle. The applicant continued to spin the wheels of the stolen vehicle in an attempt to push the patrol vehicle from his path. 6. Several police surrounded the stolen vehicle and removed the applicant. On testing he was found to have a PCA reading of 0.12. On being interviewed the applicant admitted the offence. The patrol car was extensively damaged and there was moderate damage to another police vehicle. 7. Count 3 - about 12.50 am on 2 February 2001 a 46 year old man (the victim) was seated in front of the bus shelter at Warringah Mall, Pittwater Road Brookvale. He had just finished work and was waiting for a bus to go home. He was in possession of a backpack, tobacco and a mobile phone. These were some of the items which the offender stole. 8. The applicant and an unknown male walked past and said something to the victim. The applicant threw a cigarette at the victim, became aggressive and yelled abuse at the victim. The unknown male person unsuccessfully tried to persuade the applicant to go. 9. Suddenly the applicant punched the victim in the face while still seated. That caused the victim's glasses to fly off his face. The victim said something to the applicant, who punched the victim several times about the head. The applicant next kicked the victim in the head. The victim fell backwards onto the pavement. While the victim was on the pavement, the applicant continued to punch the victim's face and upper body. The victim tried to defend himself but the applicant continued to punch him. 10. Another person, who was an independent witness, tried to separate the victim and the applicant. The latter became aggressive towards the independent witness. The applicant kicked the victim twice more in the head before walking away. 11. The applicant next turned back and ran at the victim, who was still lying on the pavement and kicked him two or three times in the abdomen and chest. The victim tried to sit up. While doing so the applicant kneed the victim in the head. 12. The independent witness again tried to intervene. The applicant said to him, "Do you want some of this?" The applicant pushed him in the left shoulder. The applicant turned around and kicked the victim in the face. On the independent witness grabbing the applicant he retorted, "Do you want to go to hospital as well?" The independent witness backed away from the applicant, who stomped on the victim's head, while he was lying motionless on the ground in a foetal position. 13. The independent witness summoned a security guard. When confronted, the applicant said, "I haven't done anything." The security guard restrained the applicant until the police arrived. 14. The backpack was located over the fence of the Brookvale bus depot, about fifteen metres from where the applicant was apprehended. 15. The applicant exercised his right not to be interviewed. 16. The victim was taken by ambulance to Manly Hospital and admitted. He had widespread contusions to his eyebrows, forehead, chest and lips and two black eyes. He was missing four teeth. His right eye lid needed stitching. He had multiple grazes to the forearms. After a period of observation he was discharged. He was directed to have the stitches removed in five days and to see a dentist as soon as possible. The Five Form 1 Offences (a) Take and drive conveyance without consent. On 26 December 2000, the applicant broke into a vehicle, forced the steering column shell and manipulated the ignition. He collected a friend, drove the vehicle from Dee Why to Manly and return and left the vehicle unattended in Hawkesbury Avenue, Dee Why. On 12 July 2001 the applicant attended Hornsby Police Station of his own free will and made full admissions of breaking into the vehicle and stealing it. (b) Hinder police officer in execution of duty. On 12 January 2001 Senior Constable Head was trying to arrest a man in the grounds of Manly Art Gallery. The applicant approached in an aggressive manner with his arms outstretched and impeded the Constable. He was sprayed by the police with the "OC spray". (c) Assault occasioning actual bodily harm. On 16 January 2001 the applicant and other young males congregated at Dee Why. One of the other young males punched a nearby person who was sitting on a bus seat. That person fell to the ground. That other young male kicked that person in the chest. The applicant kicked that person in the legs several times and then walked away. That person was taken by ambulance to Manly Hospital, where he was treated for lacerations. The applicant was interviewed by the police and admitted assaulting that person. (d) Possess prohibited drugs. On 26 August 2001 the applicant was arrested with 1.3 grams of marijuana in his possession. (e) Assault officer in execution of duty. Following his arrest for possessing marijuana on 26 August 2001, the applicant was taken to Manly Police Station. He became aggressive and violent. As he was being escorted to the charge room he pulled away, throwing his arm backwards and striking Constable Ellis on the right shoulder with his hand and forearm. 17. The applicant was born on 22 March 1982 and was thus aged eighteen at the time of the offences, the subject of counts 1, 2 and 3. His prior history includes in 1999 obstructing a police officer, for which he was fined, unlawful use of motor vehicles, (13 charges), stealing and attempted unlawful use of vehicles (2 charges) in 2000. He was sentenced to imprisonment for 6 months suspended after serving 40 days for a period of 12 months. On 6 December 2000 he was fined for shoplifting and on 20 December 2000 he was fined for offensive behaviour. On 18 October 2001 in respect of events of 1 January 2001, he was fined heavily for driving with mid range PCA, driving in a manner dangerous and driving while unlicensed. None of these offences approach in seriousness the offence the subject of the third count. 18. The judge noted that the applicant did not give evidence. The judge found that if the applicant had shown contrition it had been small; he had shown self pity and reactive depression to some extent because of the position in which he found himself. 19. The judge expressly gave no significant discount in respect of the applicant's pleas of guilty on the basis of contrition or remorse, nor otherwise on these accounts. The judge held that the applicant's pleas of guilty had considerable utilitarian value in saving the time and cost and mental trauma which trials would have produced. However, he regarded the pleas as an acceptance of the inevitable. The judge gave the applicant a discount of 15 per cent for his pleas of guilty. 20. The pre sentence report reveals that the applicant's parents separated when he was aged seven. He was raised by his mother. His father said that his mother did not supervise him sufficiently and gave him too much freedom. In fairness to the mother, it should be recorded that she was working to support herself and their two boys. Both parents have now acquired other partners. 21. Educated to Year 9 level, the applicant did not apply himself to his studies, nor did he attend school regularly. He was more interested in sport. After leaving school the applicant lived with a relation in Queensland for a time. The applicant's father said that this was to break his association with undesirable peers in Sydney. Since leaving school the applicant has only worked for about nine months. 22. The applicant told the Probation and Parole Officer that he began using alcohol and cannabis at thirteen years of age. He accepted responsibility for the assault but found it difficult to understand why he had beaten his victim so badly and "voiced what appears to be genuine remorse for his actions". 23. The Probation and Parole Officer reported that during his bail supervision and the enquiry period for the report the applicant was superficially compliant at interview but did not attend for drug and alcohol counselling, although this was discussed with him on several occasions. He also failed to attend for his final interview. The officer commented that the applicant may need to put more effort into the lifestyle changes which his parents stated he had begun. 24. The Drug and Alcohol Counsellor of Manly Hospital and Community Health Services reported that he had attended at the Pittwater Road Centre for counselling for anger management and alcohol abuse on 20 and 27 September and 2 October 2001 and wished to continue his weekly visits. 25. The report of 3 October 2001 of Ms A Duffy, consultant psychologist, reveals that the applicant has worked with his mother's partner, who owns a fencing subcontract business since he (the applicant), received bail on a regular basis. The applicant had previously worked with the partner on an "as needed" basis and also sporadically with an uncle in a removal business. 26. The applicant told Ms Duffy that around the end of 2000 he began drinking daily and more heavily from Boxing Day onwards. He had not consumed any alcohol since his release on bail. 27. Ms Duffy stated that across the personality scales the applicant revealed oppositional, unruly and forceful features, as well as borderline tendency. His moods were unstable and labile and he may have simultaneous feelings of love, rage and guilt towards others. He can be indifferent to the feelings and reactions of others and adopt a tough, insulated and negative view. He has a tendency to act out, often impulsively without concern for consequences. He has tended to use substances to ameliorate a sense of hopelessness, as well as rejection of societal norms. 28. Ms Duffy further reported that the applicant was of below average general intelligence with relative deficits in verbal and expressive areas of ability. He required specialist remedial education in Year 9. He tended to make friends with those with similar problems. 29. Ms Duffy thought that alcohol seemed to have been the major problem, given that he became more disinhibited and easily aroused to anger if provoked. Both of the major offences occurred when he was highly intoxicated and, therefore, when he was more likely to be impulsive. In both instances he appeared to have little awareness of how his actions affected others. Ms Duffy noted that the applicant was attempting to address these problems with counselling and was aware that he needed to work further with anger management and issues surrounding substance abuse. 30. I have paid careful regard to what the applicant's grandmother and his mother's partner (who has supported the applicant) have written. The offence, the subject of count 3, was committed whilst the applicant was on bail. He was also serving the balance of a suspended sentence when the offences, the subject of counts 1, 2 and 3, were committed. The judge considered that the objective seriousness of the offences outweighed the subjective features, and particularly "his very belated attempts to try and rehabilitate himself and his expressions of remorse" on which the judge placed little weight. 31. The judge correctly made a downward adjustment in the individual sentences having regard to the totality principle. The judge correctly found special circumstances, namely, the young age of the offender, that this was his first time in prison for any substantial period, (and his first as an adult) and the special need for an extended period in which to rehabilitate himself after spending quite a substantial period in prison. 32. The applicant submitted that the judge had insufficient regard to the young age of the applicant and his rehabilitation and that while the judge referred to them when he was dealing with the questions of special circumstances and fixing a non-parole period, he did not discuss them when dealing with the fixing of the head sentence. 33. Taking the judge's remarks as a whole, he was conscious, both of the young age of the applicant and the need for his rehabilitation. It is not a sustainable proposition that the judge did not take them into account when regard is had to the overall sentence. 34. The applicant submitted that the judge made an error in limiting the discount to fifteen per cent and appearing to confuse matters relevant to that discount with the strength of the Crown case. The Crown conceded that the judge erred in assessing the level of discount to be given for the utilitarian benefit of the plea of guilty, and in seeing it as diluted by the existence of a strong Crown case. 35. The applicant contended that the Crown case on count 3 was not a strong one and, in particular, submitted that an unknown person who was initially with the applicant could have taken the bag. The submission that the Crown case on count 3 was not a strong one lacks substance. 36. The question which arises is whether this Court should intervene in relation to the sentences having regard to the error which has been identified. Was the sentence which the judge imposed on count 3, namely, a sentence of four years with a non-parole period of two years, such that no lesser sentence was warranted in law? 37. If count 3 had stood on its own, without any offences to be taken into account, the applicant's argument that this Court should intervene, would have considerable substance. However, having regard to the offences to be taken into account and the seriousness of some of those offences, no lesser sentence could have been imposed on count 3. The sentences on counts 1 and 2 were not open to challenge. That on count 2 was lenient. 38. Accordingly, I would propose that leave to appeal be granted against the sentence but that the appeal be dismissed. 39. BUDDIN J: I agree. Accordingly, the orders of the Court will be as proposed by Smart AJ. ********** 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.