New South Wales Court of Criminal Appeal CITATION : Clegg v Regina [2002] NSWCCA 394 FILE NUMBER(S) : CCA 60833/02 HEARING DATE(S) : 23 September 2002 JUDGMENT DATE : 23 September 2002 PARTIES : Kevin Daniel CLEGG - Applicant Regina JUDGMENT OF : Buddin J at 19; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/21/2036 LOWER COURT JUDICIAL Armitage DCJ OFFICER : COUNSEL : C.B. Craigie SC - Applicant P. Barrett - Crown SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service - Applicant S.E. O'Connor - Crown CATCHWORDS : Sentencing - accumulation of sentences - need to give effect to totality principle - longer non-parole period required DECISION : see paras 18. IN THE COURT OF CRIMINAL APPEAL 60833/02 BUDDIN J SMART AJ Monday, 23 September 2002 REGINA v KEVIN DANIEL CLEGG JUDGMENT 1. SMART AJ: The applicant, Kevin Daniel Clegg, seeks leave to appeal against a sentence of imprisonment for twelve months to date from 31 March 2004 with a non-parole period of nine months imposed by Armitage DCJ on 15 November 2001 for breach of recognisance in respect of the offence of accessory after the fact to robbery being armed with an offensive weapon. 2. On 21 October 1999 O'Reilly DCJ sentenced the applicant on a count of robbery in company to eighteen months periodic detention. On the count of accessory after the fact the applicant was placed on a bond to be of good behaviour for three years. The offence of drive whilst disqualified was taken into account on the robbery in company count. 3. Unfortunately, the applicant committed further offences on 8 December 1999. On 10 March 2000 the District Court, on appeal, (Goldring DCJ) on the offence of drive whilst disqualified sentenced the applicant to periodic detention for a minimum term of fifteen months with an additional term of three months. This ultimately became a sentence of one year six months and twenty-eight days commencing on 22 March 2000 with a non-parole period of fifteen months expiring on 11 October 2001 due to penalties for non-compliance with the requirements of periodic detention. 4. On 14 June 2000 the Parole Board cancelled the periodic detention and imposed three concurrent sentences of imprisonment, the longest sentence being one year six months and fifteen days commencing on 26 November 2000 and expiring on 9 June 2002 with a non-parole period commencing on 26 November 2000 and concluding on 11 March 2002. 5. The evidence does not disclose what led to the board's action but presumably there was non-compliance with the requirements of periodic detention. I should also note that the papers record two sentences in respect of one of the matters and I have taken the longer one which we have been assured is correct. 6. On 7 August 2001 at Parramatta District Court Black DCJ sentenced the applicant on each of two counts of aggravated break enter and commit an indictable offence in company to concurrent terms of imprisonment of three years commencing on 1 January 2002 with a non-parole period of twenty-seven months concluding on 31 March 2004. The judge imposed concurrent sentences of twelve months on each of two associated offences of take and drive a conveyance without the consent of the owner, such sentence to commence on 1 January 2002. 7. A further matter of attempting to break into residential premises was taken into account. It seems from the remarks of Black DCJ, that he selected the date of January 2002 to give some concurrency in respect of the periodic detention sentences. 8. On 8 August 2001 at Liverpool Local Court for each of the offences of drive whilst disqualified, possess car breaking implements, take and drive conveyance without consent and drive vehicle in manner dangerous, the applicant was sentenced to imprisonment for six months commencing that day. Those sentences were thus concurrent with the sentences imposed on the previous day by Black DCJ. 9. The position which existed after the sentence imposed by Armitage DCJ could be tabulated thus. (1) Cancel periodic 1 year 6 months 26/11/00 to 9/6/02 detention 15 days Non-parole period 26/11/00 to 11/3/02 (2) Aggravated break 3 years 1/1/02 to 31/12/04 & enter with intent Non-parole period 1/1/02 to 31/3/04 (3) Re-Sentencing 12months 31/3/04 to 30/3/05 on Breach of bond Non-parole period 31/3/04 to 30/12/04 10. From this table it can be seen that the applicant's sentences run from 26 November 2000 to 30 March 2005, a period of four years, four months, four days. The likely period in custody is four years, one month, four days. The sentences for the aggravated break and enter with intent offences has overlap the cancelled periodic detention sentences by two months and ten days. 11. The applicant's case is that Armitage DCJ failed when fixing the non-parole period to have sufficient regard to the effect of the cumulation of the sentences and that a non-parole period of thee months in overall sentences totalling four years four months was demonstrably inadequate if the usual ratio of three to one was followed and in any event on its own account having regard to the fact that the Court is dealing with a young offender. 12. Unfortunately, Armitage DCJ gave no sufficient reasons for the course which he took. The Crown contend that having regard to the extent of the criminality revealed a lesser sentence than that imposed by Armitage DCJ would not have adequately met that criminality. 13. I return to the offence of 1 October 1997. On that day Amphaisack Souly entered grocery shop premises at Bonnyrigg with two others. All three were armed. They robbed the shopkeeper of $1900. The applicant's involvement was limited to driving the get away car but he knew the robbery had been carried out by the other three men. For that offence the applicant was sentenced to eighteen months periodic detention. 14. On 6 October 1997 Souly returned to the same shop, again with his mask and his gun and robbed the proprietor of about $300. The applicant's involvement was principally being the driver of the get away car but he gathered up some money which had been dropped by Souly. For that offence the applicant was given a bond. The judge was influenced by the applicant's age, what were believed to be fairly good prospects of rehabilitation, the relatively minor role of the applicant and a lenient sentence on Souly. The judge warned the applicant that if he came back for breach of that bond he would go to gaol. 15. The applicant was not called up for breach of the bond of 21 October 1999 until O'Reilly DCJ gave a call-up direction on 26 September 2001 because of the further convictions and sentences at Parramatta District Court on 7 August 2001. Apparently no action was taken after the District Court proceedings at Campbelltown in March 2000. This may be because a very different type of offence was involved. The applicant has had the advantage of the Parole Board determining that both sentences for the cancelled periodic detention should run concurrently, that is, that imposed by O'Reilly DCJ and that imposed by Goldring DCJ. It does not appear why the Liverpool Local Court on 8 August 2001 made the sentences it imposed concurrent with those imposed by Black DCJ on the previous day. In the absence of any appeal or any adequate material, the Court must proceed on the basis that that was a sound exercise of the sentencing discretion. 16. The sentence imposed by Armitage DCJ was moderate in itself for the offence involved. The breach of the bond was serious as was the offence in respect of which the bond was given. The only issue is whether having regard to the principle of totality that sentence should have been made wholly cumulative. I am conscious of the leniency extended to the applicant by virtue of the concurrent and partially concurrent sentences to which I have earlier referred. However, a non-parole period of three months in respect of a total period of in custody of four years and one month is demonstrably inadequate in the circumstances of the present case. 17. It was incorrect not to make some further allowance for the accumulation of the sentences. However, it should be a small one in view of the criminality which has been revealed. I am also conscious of the delay in calling up the applicant for sentence in relation to the breach of the recognisance. There is no ideal solution in the present case. 18. I propose the following orders. (1) Leave to appeal against sentence granted. (2) Appeal against sentence allowed in part. (3) Dismiss the appeal against a sentence of 12 months imprisonment with a non-parole period of 9 months for breach of the recognizance for the offence of accessory after the fact to robbery being armed with an offensive weapon but vary the commencing date of such sentence to 1 December 2003 so that the non-parole period starts that day and ends on 31 August 2004 on which day the applicant is to be released on supervised parole. 19. BUDDIN J: I agree. Before moving to final orders, is there any impediment either of you see in relation to the form of the orders? CRAIGIE: No, your Honour. BARRETT: No, your Honour. 20. BUDDIN J: Accordingly, the orders will be as proposed by Smart AJ. Do you understand that, Mr Clegg, what's occurred? APPLICANT: Yep. BUDDIN J : Yes, you may go. ********** 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.