Regina v John Dechellis [2002] NSWCCA 88

New South Wales Court of Criminal Appeal

CITATION : Regina v John Dechellis [2002] NSWCCA 88 revised - 20/03/2002 FILE NUMBER(S) : CCA 60481/2001 HEARING DATE(S) : 19 March 2002 JUDGMENT DATE : 19 March 2002

PARTIES : Regina John Dechellis JUDGMENT OF : Greg James J at 10; Buddin J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/71/0035 LOWER COURT JUDICIAL Williams DCJ OFFICER :

COUNSEL : LMB Lamprati (Crown) Applicant in person SOLICITORS : SE O'Connor (Crown) CATCHWORDS : Break and enter and commit a serious indictable offence in circumstances of aggravation - discount for plea of guilty - "special circumstances" - sentence not manifestly excessive LEGISLATION CITED : Crimes Act Crimes (Sentencing Procedure) Act 1999 DECISION : Application for extension of time granted. Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60481/2001

GREG JAMES J BUDDIN J

TUESDAY 19 MARCH 2002 REGINA V JOHN DECHELLIS Judgment 1 BUDDIN J: The applicant seeks an extension of time within which to apply for leave to appeal against a sentence imposed upon him in the District Court. The applicant originally pleaded guilty in the Local Court to a charge brought pursuant to s 112(2) of the Crimes Act which alleged an offence of break and enter a dwelling place and whilst there committing a serious indictable offence, namely malicious damage in circumstances of aggravation which in this case was that the act was done knowing that there were persons present within the said dwelling. 2 The applicant adhered to that plea in the District Court and was sentenced by Judge Williams on 20 June 2001 to three years' imprisonment with a non-parole period of two years to date from 4 February 2001. An identical sentence was imposed upon a co-offender, Gavin John Henness. The maximum penalty for the offence is twenty years' imprisonment. 3 An agreed statement of facts was tendered during the sentence proceedings. Its contents are set out below: At about 2 am on the morning of Saturday 3rd February 2001 the victims, Tony Browning, his defacto wife Danielle Young and their 2 children were asleep in their home at 7 Sale Street Grenfell. Danielle Young's 14 year old niece, Elis Young, who lives with them was also asleep in her bedroom down the hall. The little children were aged 16 months and 2 years of age and they were asleep on a mattress on the living room floor. Danielle Young recalls making sure that the front door was shut before going to bed and Troy recalled locking the front screen door. The three windows in the lounge room all had fly screens on them. Danielle Young recalled that the middle window was closed but thought that the others may have been open. They were awoken by banging on the front screen door. Troy Browning heard a male voice shouting "fucking get outside". Troy Browning went from the bedroom to the lounge room as he approached the lounge room he saw one of the front windows smash and glass spray into the lounge room. He then saw the second and third windows in the lounge/dining room smash. At this time Troy Browning could hear male voices which he did not recognise yelling "fucking get outside". Troy Browning then saw the prisoner John Dechellis' head poking through the smashed window closest to the front door. Dechellis said to Troy "get outside", Troy responded by saying that his children were inside the house and if Dechellis got outside then he would come out. At that time the children were crying and screaming. Troy saw that Dechellis pulled his head back outside. Troy then heard Dechellis say "Is Shannon here, I know he is here, I saw him today." Troy said "he is not here". Troy continued to attend to his children and about 5 seconds later he saw Dechellis climb through the window feet first. Troy Browning stood up and Dechellis walked towards him saying "you're fucking dead". Troy said "What are you doing? Fucking get out". Dechellis then punched Troy to the left side of his head. Troy grabbed Dechellis and wrestled with him from the lounge area to the hallway, Troy was trying to grab his arms to stop him punching. Troy managed to punch him away and run to his bedroom – leaving the two toddlers in the lounge room. Troy Browning attempted to close the bedroom door but Dechellis managed to get his arm in between the door. Troy recalls trying to slam the door a couple of times and eventually Dechellis removed his arm. Troy got the door shut and pushed himself up against the door, he told Danielle to ring the police. Troy also had hold of the door handle and could feel the pressure coming from the other side. Danielle Young saw something metal (a butcher's steel) come through the door, it narrowly missed Troy's arm. Troy could not see it as he was so close to the door. At this point the noise stopped, except for the children screaming, and Troy noticed that the pressure on the door handle had gone. Troy pushed a set of white drawers up against the door. Troy Browning heard a big bang and he was forced back into the bedroom and the door landed on his back and on the chest of drawers. Danielle Young saw the door being knocked off its hinges with such force that it went over the top of Troy's head before landing on him and the drawers. Troy Browning feared for his life and assumed that they were after him. He saw the open bedroom window (which had also been smashed) and dove out the window to the ground some 2 –3 metres below. Danielle Young saw Dechellis and John Hennes standing at the door frame. Dechellis had a baseball bat in his hand and was holding it above his head. Hennes ran off back down the hallway and Dechellis followed. Troy Browning ran to his neighbour's (Ashley Kennedy) house at 3 Sale Street, yelling for help along the way. Eventually the door was opened and Troy started talking to his neighbour. Troy then heard two male voices outside the lounge room yelling, Hennes yelled, "Troy get outside" and "Fucking get outside." Troy saw that both Dechellis and Hennes had their faces pushed up against the flyscreens at Ashley's home. Troy noticed that Dechellis who also demanded that Troy come outside and talk to him was holding what appeared to be a baseball bat above his right shoulder. Troy thought that the baseball bat was made of metal from the sound it made when Dechellis banged it on things. Ashley saw Dechellis swing at his fly screen door and hit it with what he thought was a baseball bat or something similar. Ashley Kennedy also had children inside his home and informed Dechellis of this. Both Dechellis and Hennes remained on the porch. Ashley noticed that Hennes was holding what he thought was a knife but in fact was the Butcher's steel. Ashley heard both Dechellis and Hennes state that they wanted "Troy, Shannon and Mick". At this time another neighbour Phillip Robinson also known as 'China' from No 1 Sale Street approached Dechellis on the front lawn. Phillip placed his hand on Dechellis shoulder and told him to "ease up". Dechellis responded by hitting Mr Robinson in the face. A fight resulted between the two, and just as Mr Robinson got the upper hand he heard someone yell out "watch out". He then saw Hennes who grabbed him and dragged him off Dechellis. Hennes proceeded to kick Mr Robinson in the back and another struggle took place. Mrs Robinson and their children got Hennes off Mr Robinson. At this point Troy Browning whom was still inside 3 Sale Street saw Hennes walk towards Mrs Robinson and her boys. Troy went outside and picked up a baseball bat that was on the porch, he told Hennes to move away from Mrs Robinson and the children. Hennes began shaping up towards Browning and jumping around. Hennes then turned his attention back towards the Robinson boys. Troy Browning believing that Hennes would harm them struck Hennes with the bat to the head and knee area. Hennes was felled as a consequence of these blows. Police arrived and both were arrested. Mr Hennes was offered medical treatment but refused it and was conveyed to Grenfell Police Station with Dechellis. Both were deemed to be intoxicated or under the influence and were not interviewed in relation to the matter. The butcher's steel was recovered outside 7 Sale Street and the Baseball bat outside 3 Sale Street. 4 Judge Williams heard evidence from each of the offenders and from the applicant's partner, a Ms Miles. That evidence in large measure was led in order to provide an explanation for the offenders' conduct on the night in question. Judge Williams summarised the effect of that evidence in the following terms: Both these young men – Mr Dechellis is aged twenty, Mr Hennes is aged twenty seven – have had problems with alcohol and drugs, going back many years. Mr Dechellis decided to leave Sydney where he continued to re-offend on release from various institutions as a juvenile and where he felt that there were people there who were likely to lead him into trouble, and to come with his partner Miss Miles to live in Housing Commission premises at Grenfell. Mr Hennes, who had been friendly with Mr Dechellis for some years, came with them. He lived in separate accommodation in Grenfell. It appears that whilst both men had heroin habits, they had managed to cease that habit but were using fairly large amounts of alcohol and in the nine or so days preceding this event were both using speed, or amphetamine as well. They both referred to being on a nine day binge. On the night in question Miss Miles said that she was talking to Mr Dechellis in the bedroom of their home at Grenfell and informed him that one of the victims of this offence, Mr Troy Browning, had been complicit in an unlawful sexual assault upon her by someone called Shannon King in December, the year before, when Mr Dechellis was in custody and when Miss Miles had their six month old child in the house with them. She had been drinking Moselle on that night. She said that she was a bit light headed. She said she had two or three glasses of wine. Both Mr Dechellis and Mr Henness had had substantially more and indeed, at the conclusion of the events on this night, both were deemed to be so intoxicated that they were not able to be interviewed on ERISP by the police. They say that they had had about twelve glasses of moselle before this event occurred. Well in that situation, Mr Dechellis said that when Miss Miles informed him of what had occurred, he became very upset. He went and spoke to Mr Henness and told him what he had been told. Although initially he thought that Miss Miles may not have been telling the truth, he was convinced that she was, or became convinced that she was, that he picked up a baseball bat and left the premises, followed by Mr Henness, who apparently, although he has no particular recollection of this, picked up an item called a butcher's steel which is a thing used to sharpen knives with. They both walked a short distance to 7 Sale Street, Grenfell where Mr Troy Browning and his partner Danielle Young and their two children, and apparently a fourteen year old niece, were asleep at 2am in the morning. 5 The applicant, who appeared unrepresented in this Court, provided written submissions in support of his application which he amplified in oral argument. The effect of his submissions was that the sentence imposed upon him was manifestly excessive and that a sentence in the form of a "Griffiths remand" should be substituted in order that he may attend a community based rehabilitation program. It is not asserted that his Honour made any material error of fact or law in the sentencing process. Nor can I detect any such error. As Judge Williams said this was "a very serious offence". So much is apparent from an examination of the facts which I have earlier recited. His Honour nevertheless gave appropriate consideration to those factors which were relevant to an assessment of the applicant's overall objective criminality. His Honour for example took into account that no-one was seriously injured, that the offence was prompted by what Ms Miles had told the applicant and that it was a spontaneous reaction to that communication. His Honour was accordingly prepared to accept that there was little or no planning involved in the commission of the offence. 6 Furthermore his Honour took into account those subjective features of the case which the applicant was able to call in aid. His Honour allowed a 25% discount from the otherwise appropriate sentence on account of the applicant's early plea of guilty and his expressions of remorse and contrition. He also took into account the applicant's youth, his health problems (he was suffering from hepatitis C and cirrhosis of the liver apparently caused by his excessive consumption of alcohol), the fact that he was serving his sentence in maximum security (by reason of his having an "E" classification on account of a conviction for escaping from lawful custody) and was thus unable to have access to structured programs for drug and alcohol counselling. His Honour also took these matters into account in reaching a conclusion that there existed "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 7 In those circumstances it would appear on the face of it that the sentence imposed by Judge Williams was within the applicable range of sentence for an offence of this kind. 8 There is one further consideration which in my view puts the matter beyond doubt. The applicant had already accumulated a large number of convictions when he appeared for sentence. Many of them were for offences committed whilst a juvenile and on two occasions he had had control orders imposed upon him. Of more particular significance was the fact that he had been sentenced at Cowra Local Court to imprisonment for 12 months with a non-parole period of 9 months to commence on 7 March 2001 for offences of common assault and contravening a domestic violence order. Furthermore on 26 April 2001 he was sentenced to concurrent terms of six months imprisonment to date from that date for assaulting an officer in the execution of his duty, assault occasioning actual bodily harm, escaping from lawful police custody, steal motor vehicle and drive whilst disqualified. 9 In those circumstances for his Honour to have backdated the commencement of the sentence with which this application is concerned to 4 February 2001 was to extend a significant measure of leniency to the applicant. I propose the following orders: