New South Wales Court of Criminal Appeal CITATION : Regina v Oades [2003] NSWCCA 155 HEARING DATE(S) : 30 May 2003 JUDGMENT DATE : 30 May 2003 JUDGMENT OF : James J at 36; Smart AJ at 1 DECISION : (1) Leave to appeal granted. (2) Dismiss the appeal so far as the sentences imposed on counts 1 and 2 are concerned. (3) As to the sentence on count 3, appeal allowed, sentence quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for four years commencing on 12 March 2003 and expiring on 11 March 2007 with a non-parole period of two years expiring on 11 March 2005 on which date the applicant will be eligible for release on supervised parole. CATCHWORDS : Young offender - sentences not reflecting adequate discount for his disclosures of offences - powerful subjective features - application of principle of totality. LEGISLATION CITED : Crimes Act ss 99, 113(2), 112(3) Ellis [1986] 6 NSWLR 603 CASES CITED : Gorrell [2002] NSWCCA 307 Ponfield & Ors [1999] 48 NSWLR 327 Ryan v The Queen [2001] HCA 21 [97] PARTIES : Regina v Rick Kevin Oades FILE NUMBER(S) : CCA 60099/03 (A) A Francis COUNSEL : (C) D M L Woodburne SOLICITORS : (A) D J Humphreys (C) S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/1024 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60099/03 JAMES J SMART AJ Friday, 30 May 2003 Regina v Rick Kevin OADES Judgment 1. SMART AJ : Rick Kevin Oades seeks leave to appeal against the asserted severity of the following sentences. 1. 6/3/02 Demand property with intent to steal Imprisonment for fixed term of 2 years from 12/3/02 (s.99 Crimes Act ) 2. 6/3/02 Break & enter dwelling house with intent to commit serious indictable offence (larceny) in circumstances of aggravation (knowing person to be therein) (Imprisonment for 3 years from 12/3/02) (s.113(2) Crimes Act) 3. 7/3/02 Break & enter dwelling house & steal in circumstances of aggravation (knowing person to be therein) Imprisonment for 5 years from 12/3/03 with Non-parole period of 3 years) (s,112(3) Crimes Act) There was thus an effective overall term of six years with a non-parole period of four years. The offences on Form 1 taken into account were: 30/1/02 Ettalong, Break and enter with intent - Put fist through locked street door and unlocked it, heard voices walked away. 12/2/02, Woy Woy, Steal property in dwelling. Knew occupants were out the back of their property. Entered open door and stole two purses each containing $100. 16/2/02, Woy Woy, Break enter & steal, opened closed screen door and took $190 from a wallet. 10/3/02, Woy Woy, Break, enter & steal. Unlocked back door and took two purses each containing $50 - noticed one person in house. 12/3/02, Woy Woy, Possess prohibited drug. On arrest found to be in possession of a foil containing cannabis 2. The offender was arrested on 12 March 2002 and pleaded guilty on 13 June 2002 before the Magistrate and was committed for sentence. It was a paper committal. In his recorded police interview of 12 March 2002 the offender admitted the offences the subject of Counts 1 and 2. The offender agreed to and did accompany the police on a drive around the Woy Woy area, pointing out a number of premises where he had committed crimes. In a second recorded interview on 12 March 2002 he admitted the offence the subject of Count 3 and the dishonesty offences on Form 1. The Facts 3. On 6 March 2002 the offender slipped into the home of Mr and Mrs Fisher, aged eighty-one and seventy-six respectively at Woy Woy by opening the closed rear screen door, having first seen Mr Fisher in the back yard. The offender went into a spare bedroom and shut the door. Mrs Fisher was at home and her husband was in the outside laundry. When Mrs Fisher pushed the door of the spare bedroom it would not move. She realised that someone was behind the door and screamed. The offender came from behind the door and had a fifteen centimetre bladed knife and held it above his head. He forced her back down the hallway. Mr Fisher arrived on the scene. The offender demanded Mr Fisher's wallet. Meanwhile Mrs Fisher ran from the house. Mr Fisher said that he did not have a wallet. The offender ran from the home and escaped. A witness saw him throw an object into a yard in another road. A black-handled fifteen centimetre bladed knife was recovered from that yard. 4. Between 10.30am and 10.40am on 7 March 2002 the offender entered the home of Ms J Hunt aged eighty in Woy Woy by tearing a hole in the front locked security door and undoing the latch. The front wooden door was open, $160 in cash, a wallet worth seventy dollars and personal papers were stolen. The offender knew someone was in the house. 5. A regrettable feature of many of the offences was that the occupiers of the homes entered were elderly. 6. The offender acknowledged the objective seriousness of the offences. As to the offences involving Mr and Mrs Fisher the judge found that the offences were opportunistic rather than planned, although there was a degree of forethought. Subjective Features 7. The offender was born on 7 November 1983. His criminal history began in early 2000 in the Woy Woy Children's Court. He has previous convictions for larceny, break enter and steal and break and enter with intent to steal and allied offences. He has been sentenced to a control order for twelve months with a non-parole period of nine months. There have been numerous offences. He was released from the Kariong Detention Centre in November 2001. The current offences occurred very shortly after the expiration of the non-parole period. 8. The offender's parents were involved in a relationship and he lived with them until aged two and a half years, when he was taken from them by the Department of Community Services and placed in foster care. His foster parents would not allow him to have contact with his natural family except that he had ongoing contact with his paternal grandparents. Around the age of ten years he began asking about his parents and the Department arranged for him to meet his natural family. When the offender was twelve years of age his foster parents made arrangements to legally adopt him. He attended a meeting with Departmental officers, his natural and foster parents. He signed papers agreeing to the adoption but later felt that he had been "tricked" into signing them. 9. From that point his behaviour deteriorated. He began demanding money from his foster parents and stealing from them. At the age of thirteen he was asked to leave their home. He lived on the streets. About three months after leaving he returned to his foster parents' home to apologise, but was turned away before he was able to speak with them. He lived on the streets for a number of months and began stealing to survive. His natural sister found him and took him to live with their natural father. Since that time the offender has generally resided with his natural father when not in custody and proposes to return to live with his father when released. Since moving in with his natural father the offender has had contact with his natural mother about monthly. 10. The offender's behaviour and attendance at school were poor. He was expelled in his first year at high school and did not continue with his studies. He has a history of major depressive illness making one serious attempt at self-harm. Psychological testing revealed a level of dysfunction involving inability to control his mood, difficulty with inter-personal relationships, hostility and self-destructiveness. 11. The offender engaged in substance abuse from an early age. Over time the abuse became significant. He has not used any drugs since being taken into custody on 12 March 2002. 12. Objective testing of the applicant's IQ placed him soundly within the average range of intellectual functioning, but he may be in the above average range when allowance is made for his early departure from school. From what the judge gleaned when he gave evidence, she thought that he was of above average intelligence. 13. The psychologist reported: "...he freely admits his involvement in his offending and is insightful about the effects of his behaviours and how he came to be in this position...there are a number of issues apparent which require intervention to assist [the offender] with leading a law-abiding lifestyle, including his substance abuse, tendency towards depression and issues around his offending. It would also appear beneficial for [the offender] to further develop his educational and vocational skills with preparation for his release. Structured supervision upon his release appears indicated." 14. The judge accepted as genuine the offender's expressions of remorse and contrition. She also accepted that he had been assaulted while in prison. She noted that this was his first period in an adult gaol and added: "No doubt his time will be spent in protective custody due to his young age." She found that there was need for a lengthy and supervised rehabilitation as he was a young offender and not without hope for the future. I agree that there were special circumstances. These included the offender's youth, this being his first time in an adult gaol and his need for extended supervision. 15. The judge correctly emphasised the objective seriousness of the offences, noting the offender's record for like offences, his victims were elderly, his knowledge of victims being present, a weapon being used and the trauma suffered by the victims. The trauma was substantial. 16. The offender submitted that the judge gave insufficient weight to the assistance provided by the applicant and that she failed to properly consider the principles of R v Ellis (1986) 6 NSWLR 603. The offender relied on this passage in the judge's remarks: "...the offender pleaded guilty at the earliest opportunity. In addition he took the police on a ride around in the Woy Woy area and indicated a number of addresses where he had committed break and enter offences and stealing. These offences may not have come to light had it not been for his admissions and he is entitled to some leniency in respect of those admissions." 17. The offender submitted that although the judge recognised the importance of the disclosures, she did not state that as a result he was entitled to significant added leniency as laid down in Ellis. Further, the sentences did not reflect the discount which should have been given for the disclosures by the offender of his criminality and for his contrition. 18. The offender relied upon the judgment of Kirby J in Ryan v The Queen [2001] HCA 21 at [97] where he held that a large reduction in sentence is, prima facie, appropriate where an Ellis situation arises. However the other Justices did not share Kirby J's views. In Ryan the sentencing judge referred to disclosing offences of which the police were unaware and may not have become aware as the Crown case in relation to many of his victims rested solely on his admissions. That judge added: "These things to his credit show his contrition and entitle him to a discount in punishment." 19. Hayne J said at [153]: "The fact that the sentencing judge made no express reference to R v Ellis ... and did not use an epithet like 'considerable' or 'significant' when referring to the credit he gave on this account does not demonstrate error. Error could be discerned only if it could be seen that the sentence imposed was excessive..." 20. Callinan J at [185] with whom Gummow J agreed on this point also held that there had been no error on the part of the sentencing judge. 21. McHugh J at [15] said: "The statement in Ellis that 'the disclosure of an otherwise unknown guilt of an offence merits a significant element of leniency' is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be positively, rigidly or mechanically applied. It is an indication that in determining the appropriate sentence the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case." 22. I accept the Crown's submission that the Court should not find error on the basis the judge did not state that the offender was entitled to significant added leniency. The Court has to look at the sentences themselves. I accept that the real ground of appeal is whether the sentences were manifestly excessive. However as counsel for the offender pointed out Count 3 only came to light as a result of the offender's disclosures. This was the count on which the longest sentence was imposed. A similar comment could be made as to some of the offences taken into account on count 3. 23. The Crown pointed out that Gorrell [2002] NSW CCA 307, on which the offender relied, was a different case from the present one and generally dealt with lesser charges than the present one. In Gorrell there was one aggravated break, enter and steal offence and the circumstance of aggravation was that Gorrell was in company. The Crown relied on Ponfield & Ors [1999] 48 NSWLR 327. 24. In the light of Ryan it is preferable for this Court to take the Ellis submissions into account in considering the manifestly excessive ground rather than consider them as a separate ground. Manifestly Excessive 25. The offender submitted that the overall sentence was outside the permissible range when the following matters were given proper weight. (a) the applicant's co-operation with the police, admissions and disclosure of otherwise undetectable guilt; (b) the applicant's plea of guilty; (c) the applicant's remorse and contrition and her Honour's finding that the applicant, having regard to the evidence he gave on sentence, 'expressed his regret and remorse as best he could'; (d) her Honour's finding that the applicant was likely to serve his sentence in protection, this being his first term of imprisonment, he had been assaulted and that he was considered at risk; (e) the applicant was only eighteen at the time of the offence; (f) the applicant had been diagnosed with depression at sixteen, treated with anti depressants for nine months and had attempted suicide eight months before his sentence hearing whilst in juvenile detention; (g) the applicant's personal history was troubled by foster care and exposure to drug abuse from the age of ten years (h) her Honour's finding that the applicant was of above average intelligence which suggests that if the applicant can overcome his immaturity and abstain from drug use he has a good future ahead of him; (i) her Honour's findings that the applicant's involvement in respect of the first two offences was opportunistic rather than planned. 26. The Crown submitted that each of the matters referred to by the offender was taken into account by the judge and that the sentences were not unreasonable or unjust. 27. The offender relied on the fact that the judge's starting point overall must have been seven and a half years, when all the sentences were combined to end up with sentences totalling six years. That is a legitimate consideration. The Crown submitted that the correct approach was to look at the individual sentences. That is also a legitimate consideration. Adopting the latter approach, that would have produced a starting point of six and a quarter years for Count 3. The remaining period of one and a quarter years to reach seven and a half years as an overall starting point is taken by extrapolating the other sentences and allowing for the overlap in the sentences. Accumulation, concurrency and totality must be kept in mind. 28. The Crown stressed that the offence the subject of Count 3 was by far the most serious and not manifestly excessive. It relied in particular on the following: (i) There was a lady at home, (ii) she was aged eighty, (iii) the applicant's prior record, (iv) and the offences taken into account on Form 1. 29. So far as I can tell when the applicant entered the home of Ms Hunt no weapon was produced but he was aware that she was in the home. There does not appear to have been any confrontation between her and the offender and it is not clear whether, while he was in the house, she was aware of his presence, or whether when she found the items missing she realised someone must have entered her home. I take the Crown's point that for a lady aged eighty even becoming aware subsequently that someone had been in her home illicitly would have a serious and unsettling effect upon her. 30. The applicant placed reliance upon the statistics of the Judicial Commission. They show that for an offence under s 112(2), that is, aggravated break, enter and commit a serious indictable offence, a head sentence of seven years would be at the top of the range. However it must be remembered that in this case the sentence for that offence was but five years. 31. The applicant's counsel stressed the contrition of the applicant and his candour in the records of interview. That candour is almost disarming. 32. For an eighteen-year-old youth with his disadvantaged background, who has never previously been in an adult gaol, and who has disclosed his own criminality, an overall starting point of seven and a half years is manifestly excessive, as is a starting point of six and a quarter years for count 3. The correct starting point for count 3 is five years four months before applying the judge's discount of twenty-five per cent for the pleas of guilty. Allowing for the overlapping of the various sentences that would produce an overall starting point of six years four months. The correct sentence for count 3, after applying the requisite discount is four years. 33. I turn now to the non-parole period imposed on count 3, namely three years. Again taking into account the applicant's youth, disadvantaged background, this being his first time in an adult gaol, and his disclosure of his criminality, a non-parole period of three years is excessive, particularly when regard is had to the principles of totality. The correct non-parole period on that count is one of two years. 34. I am of the view that the fixed terms imposed on counts 1 and 2 should not be disturbed. The production of a knife is a very serious matter and the evidence discloses that the Fishers were greatly affected by the invasion of their home and the production of the knife. 35. I propose the following orders: (1) Leave to appeal granted. (2) Dismiss the appeal so far as the sentences imposed on counts 1 and 2 are concerned. (3) As to the sentence on count 3, appeal allowed, sentence quashed. In lieu of the sentence imposed the applicant is sentenced to imprisonment for four years commencing on 12 March 2003 and expiring on 11 March 2007 with a non-parole period of two years expiring on 11 March 2005 on which date the applicant will be eligible for release on supervised parole. 36. JAMES J: I agree with the judgment of Smart AJ. The orders of the Court will be as proposed by his Honour. 37. SMART AJ: Could you check the maths before we go? FRANCIS: I did. It is correct your Honour. ********** Last Modified: 07/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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