Reported Decision : 142 A Crim R 194 New South Wales Court of Criminal Appeal CITATION : REGINA v GARVEY [2003] NSWCCA 226 HEARING DATE(S) : 12 August 2003 JUDGMENT DATE : 12 August 2003 JUDGMENT OF : Wood CJ at CL at 1; Simpson J at 30; Adams J at 2 DECISION : 1 Leave to appeal against sentence granted; 2 The sentence of the District Court quashed and there be substituted therefor a sentence of three years' imprisonment commencing on 18 June 2002 and expiring on 17 June 2005 ; 3 A non-parole period of twenty-one months is imposed. The applicant is to be release to parole on 17 March 2004, subject to the supervision of the Adult Probation Service. CATCHWORDS : Criminal law - sentence - plea of guilty to an offence of break, enter and steal - appeal against sentence - whether setting of fire to be taken into account as an aggravating circumstance - whether De Simoni principle relevant - whether appropriate discount was given for plea of guilty - principle of rehabilitation - whether special circumstances exist LEGISLATION CITED : s195(b) of the Crimes Act 1900 ss 44 & 59 Crimes (Sentencing Procedure) Act 1999 Attorney General's Application (No 1); R v Ponfield & Ors [1999] NSWCCA 435 at 48; (1999) 48 NSWLR 327 CASES CITED : R v De Simoni (1981) 147 CLR 383 R v Thomson & Houlton (2000) 49 NSWLR 383 PARTIES : Regina (Respondent) Leslie Neil Garvey (Applicant) FILE NUMBER(S) : CCA 60137/03 COUNSEL : P Winch (Applicant) G Rowling (Respondent) SOLICITORS : D Humphreys (Applicant) S E O'Connor (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT 01/31/0213 FILE NUMBER(S) : LOWER COURT Urquhart QC DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60137/03 WOOD CJ at CL SIMPSON J ADAMS J TUESDAY 12 AUGUST 2003 REGINA v LESLIE NEVILLE GARVEY JUDGMENT 1 WOOD CJ at CL: I will ask Justice Adams to deliver the first judgment. 2 ADAMS J: On 8 August 2002 the applicant pleaded guilty in the District Court to an offence of breaking, entering and stealing which was committed on 14 January 2002. The premises were a warehouse occupied by an electrical retail company and the applicant stole a laptop computer, a cable tester and a video voltage rescue tester. He was sentenced on 16 August 2002 to imprisonment for a term of four years from 18 June 2002, with a non-parole period of two years. 3 The facts of the case are simple. At about 6pm the premises were secured and emptied. Something over two hours later a number of alarms were activated and the security firm sent out a security officer to inspect the premises. When the officer arrived he saw that an office window was smashed and that the front doors were closed, but unlocked. When the officer opened the doors he saw the premises were filled with thick smoke and, on entering the building, saw a fire burning on a desk with the flames about two feet high. He attempted to contain the fire by using a fire extinguisher, but it did not work. He found a broom and used it to put out the fire and extinguished the smouldering papers with water from a large water bottle which was nearby. Although the fire damage was relatively slight, with burn marks on the desk and a nearby wall, a major fire was only just averted by the quick action of the security guard. Desk drawers had been opened and papers strewn around. The stolen items were in use and taken from the office area. They were valued, new, at about $25,000. A fingerprint of the applicant was discovered when police examined the scene and, on 1 February 2002, the applicant was arrested. He denied knowing anything about a break and enter of the premises and otherwise had nothing to say to the officers. 4 When the matter came to the Local Court on 18 June 2002, the applicant pleaded guilty and was committed to the District Court for sentence. The reasons for sentence of the learned sentencing judge describe the circumstances of the offence, including the fire which his Honour took into account as an aggravating circumstance following the list of material factors set in Attorney General's Application (No 1); R v Ponfield & Ors [1999] NSWCCA 435 at 48; (1999) 48 NSWLR 327 at 337 – "48 A court should regard the seriousness of offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is a cumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen 1998 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s 105A(1)(f)), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act s 105A(1)(c), (d) and (e)). (xi) That force was used or threatened (other than by means of an offensive weapon or instrument - a defined circumstance of aggravation Crimes Act s 105A(1)(a))." 5 Factor (v) must be considered with caution. As Grove J pointed out it is not proper, when imposing a sentence, to take into account as a circumstance of aggravation a matter which would have warranted a conviction for a more serious offence (see R v De Simoni (1981) 147 CLR 383). 6 Here, the damage to property caused by the fire was an offence under s195(b) of the Crimes Act 1900, punishable by imprisonment for ten years. The applicant, through his legal representative, took no objection to this circumstance being taken into account as one of aggravation on his plea in the District Court and did not seek to agitate that question in this court. In the circumstances, I do not think it is necessary to consider the possible application of De Simoni to the circumstances of this case. 7 So far as the subjective features are concerned, the following is a summary of the information contained in a report of the field officer for the Many Rivers Aboriginal Legal Service. The applicant was eighteen and a half years of age at the time of the offence. The middle child of five children, he attended school until reaching high school years, when his use of marijuana and involvement in criminal activity with other children played a major role in his leaving school. He has been a regular and frequent user of marijuana since the age of thirteen. His behaviour was not condoned by his parents, but he did not respond positively to their attempts to get him to change for the better. 8 Both his parents are in full time and responsible employment and his family circumstances appear to be stable. The applicant managed to get several days a week of work for some time before his arrest, and his mother reported that when he was working he was "a different person" and, as I understand it, was using less marijuana. 9 An employer tradesman gave a written reference in which he said he had employed the applicant on many occasions and had found him to be a trustworthy, willing and capable worker. He said that he could not understand how the applicant came to have committed the offence as "he has never shown me any cause for concern while on any building sites and has often been left alone to do work...". This testimonial gives some support for the applicant's mother's observation that he seemed to be a very different person when working. 10 The applicant's criminal record discloses a number of offences of breaking, entering and stealing (four), stealing (three), malicious damage (one), possessing housebreaking implements (one). These were dealt with without recording convictions by the imposition of short term control orders, probation under supervision and community service orders. The circumstances of these offences have not been disclosed but, in light of the fact that they were considered in the Children's Court and the sentencing consequences, they do not appear to have been particularly serious. The applicant spent about six weeks in a juvenile institution in 1997 and four months from October 1999 to February 2000. Since his release on 14 February 2000 he managed to stay out of trouble, except for traffic offences, of which he was convicted and fined on 18 December 2001. 11 He had been charged with common assault arising out of a domestic dispute on 21 December 2001 and was on bail at the date of the present offence. The outcome of this charge is not known, but it does not appear to be presently relevant. 12 On 29 January 2003, that is to say after he was sentenced in respect of the offence now being considered, the applicant was convicted of various traffic offences and assaulting police officers, in respect of one of them, causing actual bodily harm.. He was also charged with malicious damage to property, as I understand it, the fire lit during the break and enter. This was double punishment, since lighting the fire had already been taken into account in his sentence for breaking , entering and stealing. Such a mistake should not have happened, but it is presently irrelevant. It is not known when these offences were committed but he was charged in respect of them on 13 June 2002. 13 Including the current sentences, the applicant was sentenced to an effective term of imprisonment of twelve months commencing 17 June 2004, with a non-parole period of six months. The applicant attributed the initial remission in his bad behaviour to the fact that he obtained employment. However, from December 2001 he increased his drinking and marijuana use, partly arising, he said, from the break-up in his long term relationship with his girlfriend. On the day of the offence in question here he had an argument with his former girlfriend, had been drinking heavily and using marijuana and was feeling depressed. He committed the offence on his way home. 14 He said that although he remembers breaking the windows, falling through them into the building and walking out, he did not recall either setting the fire or taking any property. 15 The applicant's Aboriginality does not appear to be a significant feature in his case. Certainly, no submission was made in relation to it, either at first instance or in this court. 16 The learned sentencing judge noted that, of the factors referred to in Ponfield, the applicant was on bail (in respect of the driving offence) at the time of the offence, the significant damage to property and the value of the property stolen. None of the other circumstances of aggravation are material. His Honour accepted that the offence had not been planned, that the applicant was drunk and that he had very little memory of what he did. 17 The learned sentencing judge also considered that there were real prospects of rehabilitation and that the applicant was sincere in attempting to rehabilitate himself and in his stated intentions to make greater efforts. The applicant expressed remorse and, although his Honour did not specifically refer to this matter, it seems to me that he did accept it as genuine. In this context, I observe that the applicant said that he could not recall and did not know what he did with the stolen items. I am somewhat sceptical about this claim, though it appears that the learned sentencing judge did not disbelieve it. 18 His Honour said that, absent any discount for the plea of guilty, an appropriate head sentence would have been a term of four and one half years' imprisonment, but that he would impose four years' imprisonment, having regard to that factor. This amounted to a discount of six months or eleven per cent. As this court made clear in R v Thomson & Houlton (2000) 49 NSWLR 383 at 419: "(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." 19 The circumstances here were unremarkable and I can see no proper basis for giving a discount at the bottom of the "appropriate range" although, of course, "where, within...[the] range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge", although a "discount towards the bottom of the range is appropriate for late pleas, for example on the day fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial." 20 One of the important purposes of guideline judgments is to bring about coherence and consistency in sentencing, where possible, whilst maintaining the proper role of first instance judges in exercising their discretion in the wide range of differing cases with which they deal. In particular, the public policy to which Thomson & Houlton is directed by way of "indicating to the participants in the criminal justice system the extent to which benefits will accrue from an early plea", especially from the perspective of utilitarian considerations, is undermined if unexplained or inexplicable departures from the application of the guideline occur. I regret to say that I think that this has occurred in this case. 21 Furthermore, I consider that the starting point of four and a half years, having regard to the objective circumstances, including the applicant's age, is excessive. This assessment is confirmed on examination of the Judicial Commission statistics pertaining to offences under s112(1) of the Crimes Act 1900. The policy of the law relating to rehabilitation of young offenders is so well established as not to need the citation of authority. 22 Rehabilitation is not only in the offender's interest, but very much in the public interest. It seems clear that a significant element of the applicant's offending behaviour has been his abuse of drugs and alcohol since his very early teens. It appears that he has begun to appreciate the importance of attempting to do something about this problem. It seems to me that the starting point of the sentence determined by his Honour could only be justified if there were no real prospects for rehabilitation and personal and general deterrence were the only significant elements in the assessment of the appropriate sentence. 23 I have therefore concluded, with respect, that the learned sentencing judge erred in the exercise of his discretion in this case. It is therefore necessary to re-sentence the applicant. For that purpose I have taken into account the applicant's affidavit which was filed in these proceedings and tendered against the possibility that the sentence needed to be reconsidered. It appears from that affidavit that he has been undertaking a virtually full-time carpentry course whilst in prison, which he will be able to continue as a TAFE course on his release. 24 His affidavit, and a narrative statement attached to it, shows that the applicant has been actively participating in various courses of adult education that have been made available to him in prison. This conduct supports the learned sentencing judge's conclusion that there is a significant prospect of rehabilitation for this offender. 25 Absent any question of the utilitarian discount, I would have sentenced this applicant to a term of four years' imprisonment commencing on 18 June 2002. I consider that a discount of twenty-five per cent should be allowed in accordance with Thomson & Houlton, and to give an allowance for the applicant's remorse and contrition. 26 In my view special circumstances justify a substantial departure from the statutory calculus contained in s 44 of the Crimes (Sentencing Procedure) Act 1999. Those circumstances are the relative youth of the applicant, the fact that this is his first experience of adult prison, the prospects for rehabilitation and the need for significant continuing support for a period longer than would otherwise be the case, following his release from prison. 27 In the circumstances, I propose that a non-parole period of fifteen months should be specified. As I have mentioned, on 29 January 2003, the applicant was sentenced to a term of twelve months' imprisonment to commence on 17 June 2004, with a non-parole period of six months. It is obvious that this sentence was intended to commence at the expiration of the non-parole period of the sentence he was then serving, and that the specification of the anticipated date of that commencing was facultative only. To all intents and purposes, under s 59 of the Crimes (Sentencing Procedure) Act 1999 it is appropriate that that order should be regarded as imposing a sentence to commence from the date upon which the non-parole period that this court will impose, expires. 28 Accordingly, I propose the following orders – (1) Leave to appeal against sentence be granted. (2) The sentence of the District Court be quashed and there be substituted therefor a sentence of three years' imprisonment commencing on 18 June 2002 and expiring on 17 June 2005. I would accept the necessity to accumulate the sentences imposed in respect of the break, enter and steal offences and the assault, which attracted the sentence of twelve months' imprisonment, having regard to their dates and the character of the offences. Similarly, I think it appropriate to accumulate, in substance, the non-parole periods of fifteen months in respect of the present offence and six months in respect of the assault offence, and consequently I propose that a non-parole period of twenty-one months be imposed, expiring on 17 March 2004. (3) The applicant is to be released to parole on 17 March 2004, subject to the supervision of the Adult Probation Service. 29 WOOD CJ at CL: I agree. 30 SIMPSON J: I also agree. 31 WOOD CJ at CL: The orders of the court will be as proposed. ********** Last Modified: 09/05/2003 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.