New South Wales Court of Criminal Appeal CITATION : Regina v Silva [2002] NSWCCA 332 FILE NUMBER(S) : CCA 60924/2001 HEARING DATE(S) : 14/8/02 JUDGMENT DATE : 21 August 2002 PARTIES : Regina Keith Edward Silva JUDGMENT OF : Hidden J at 1; Adams J at 12 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0313 LOWER COURT JUDICIAL Tupman DCJ OFFICER : COUNSEL : HK Dhanji - Applicant RA Hulme - Crown SOLICITORS : DJ Humprheys - Applicant SE O'Connor - Crown CATCHWORDS : Criminal law: application for leave to appeal against sentence - home invasion offences - no question of principle. LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 CASES CITED: R v R [2000] NSWCCA 163 DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60924/01 HIDDEN J ADAMS J 21 August, 2002 REGINA v Keith Edward SILVA JUDGMENT 1 HIDDEN J: The applicant, Keith Edward Silva, pleaded guilty in the District Court to a charge of entering a dwelling house with intent to commit a serious indictable offence, namely assault occasioning actual bodily harm, in circumstances of aggravation (an offence under s 111 of the Crimes Act, carrying a maximum sentence of 14 years imprisonment) and two charges of assault occasioning actual bodily harm (offences under s 59 of the Crimes Act, carrying a maximum sentence of 5 years imprisonment). On the first charge he was sentenced to imprisonment for 3 years with a non parole of 12 months, and on each of the other two charges he was sentenced to concurrent terms of imprisonment for 6 months. The latter two sentences were also concurrent with the sentence on the first charge, so that the overall sentence was 3 years with a non parole period of 12 months. He seeks leave to appeal against those sentences. 2 The charges arose out of a serious incident which took place at Telopea on 13 November 2000. The applicant and a co-offender, Rodney Frew, burst into the home of a sixty six year old pensioner, and assaulted him and two visitors who were there at the time. They demanded money and drugs and, in fact, they departed with about $200 in coins taken from the occupier's bedroom. 3 In an interview with police, the applicant claimed that he had gone to the house to recover some marijuana for which he had earlier paid $200. He said that the assaults occurred because he "lost it" when he was told that the drug was not available. This account was denied by the occupier of the home and the two visitors. The sentencing judge found it unnecessary to make any finding about that matter because, in my view, rightly, she saw it as having little bearing upon an assessment of the criminality of the applicant or his co-offender. 4 The applicant was thirty four years old at the time of the offence and is now thirty six. He has a lengthy criminal record, mainly for drug offences and offences of dishonesty. There is only one previous conviction for an offence of violence. He had been dealt with by every sentencing option other than full time custody. Significantly, he was subject to two good behaviour bonds at the relevant time. 5 It is unnecessary to refer to his subjective case, other than to observe that her Honour saw his offences as associated with his drug addition and accepted that he wished to try to rehabilitate himself through counselling. 6 Her Honour dealt with the co-offender, Frew, at the same time. Frew was a younger man, aged twenty seven at the time, with a minor criminal record. He also had a drug problem, but had been assessed as suitable to enter the residential drug rehabilitation program at the Linden Community. In his case also her Honour passed concurrent sentences, the result being a sentence of 2 years and 3 months with a non parole of 9 months. 7 There is a link between two of the matters argued before us by the applicant's counsel, Mr Dhanji. He complained of the disparity between the effective sentence passed upon the applicant and that upon Frew. In so doing, he acknowledged Frew's more favourable subjective case and the fact that the applicant, unlike Frew, was subject to conditional liberty at the time of the offences. However, he relied upon evidence that the applicant had assisted the authorities by revealing the identity of Frew as his co-offender. This is so, and there is no doubt that that was a factor entitling the applicant to leniency: R v R [2000] NSWCCA 163, per Hulme J at para 16. When that additional factor is weighed in the applicant's favour, it was submitted, he should not have fared any worse than Frew. 8 In her remarks on sentence, her Honour noted that the applicant had identified Frew to the police but said no more about the matter. It would have been preferable for her Honour to have acknowledged it as a matter entitling the applicant to leniency and to have quantified the reduction in sentence which it earned him (whether in isolation or in combination with his pleas of guilty). However, the measure of leniency which it might have afforded him would be relatively modest and it appears to me that, even allowing for the applicant's assistance, the distinction which her Honour made between the two men was justified. This arises not only from the significant differences between their subjective cases but also from the fact that the applicant was undoubtedly the instigator of the offences with which we are dealing. 9 Mr Dhanji's other complaint related to the commencement date of the sentences. Her Honour directed them to commence on the date on which they were passed. She had regard to the fact that there had been a discrete period of pre-sentence custody of four and a half months, and she allowed a further one and a half months in recognition of the fact that the applicant had been subject to onerous bail conditions in the period prior to sentence. She gave effect to these considerations not by backdating the 3 year sentence but by reducing the non parole period she would otherwise have imposed, 18 months, to 12 months. Again, it would have been preferable for her Honour to have backdated the 3 year sentence by 6 months and to have specified the 18 month non parole period. However, if this Court were to take that course so as to preserve her Honour's intention, it would necessitate our increasing the existing non parole period by 6 months. In a sense, that increase would be nominal but I do not consider that to be a desirable course. 10 In any event, these were very serious offences. I consider that the effective sentence of 3 years, dating from the day it does, and the non parole period of 12 months to be markedly lenient. In my view, no lesser sentence was warranted and, for that reason alone, this Court should not intervene: s 6(3) of the Criminal Appeal Act. 11 I would grant leave to appeal, but dismiss the appeal. 12 ADAMS J: I agree. ********** 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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