REGINA v. DUNCAN [2002] NSWCCA 164

New South Wales Court of Criminal Appeal

CITATION : REGINA v. DUNCAN [2002] NSWCCA 164 FILE NUMBER(S) : CCA No. 60855 of 2001 HEARING DATE(S) : Wednesday 8 May 2002 JUDGMENT DATE : 8 May 2002

PARTIES : REGINA v. DUNCAN, Alfred Charles JUDGMENT OF : Greg James J at 1; Carruthers AJ at 36

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0313 LOWER COURT JUDICIAL Kinchington, DCJ. OFFICER :

COUNSEL : Crown: D.M. Woodburne App: C.B. Craigie, SC. SOLICITORS : Crown: S.E. O'Connor App: Damilaroi Aboriginal Legal Service CATCHWORDS : Criminal law - appeal - sentence - parity - commencement date - pre-trial custody - sentence should have been backdated. LEGISLATION CITED : Crimes Act 1900 CASES CITED: Fernando [2002] NSWCCA 28 DECISION : Leave to appeal granted; allow the appeal; quash the sentence imposed below and in lieu thereof substitute a sentence of imprisonment for three years and four months commencing on 24 July 2001 and to expire on 23 November 2004; with a non-parole period to date from 24 July 2001 and to expire on 23 January 2003.

IN THE COURT OF CRIMINAL APPEAL No. 60855 of 2001

GREG JAMES, J. CARRUTHERS, AJ.

WEDNESDAY 8 MAY 2002 REGINA v. ALFRED CHARLES DUNCAN Judgment

1 GREG JAMES, J: This is an application for leave to appeal in respect of a sentence imposed upon the applicant in the District Court of New South Wales at Moree in respect of an offence of break, enter and steal in circumstances of aggravation. That offence is provided for by s.112(2) of the Crimes Act 1900, and for that offence is provided a maximum penalty of 20 years imprisonment. 2 On his plea of guilty the applicant was sentenced to imprisonment for three years and four months commencing on 22 November 2001, the date upon which sentence was imposed, and expiring on 21 March 2005. A non-parole period of 18 months expiring on 21 May 2003 was imposed. 3 The applicant had been arrested on 24 July 2001. He was refused bail for this offence. He remained continuously in custody between arrest and sentence and at the time of his arrest, as was noted by the trial judge, he was on bail waiting to be dealt with on a similar charge in the Children's Court. At the time of the sentence he had not been dealt with on that charge. 4 Subsequently he came before a magistrate in the Children's Court on that charge, that being 7 March 2002. On that occasion, in circumstances to which I will refer later, the learned magistrate feeling constrained by the nature of the sentence passed in the District Court, and the limited options available to him dismissed the charge with a caution under the relevant legislation. 5 At the time the Magistrate noted the papers "serving three years as an adult". 6 The applicant came forward for sentence, he having been born on 27 April 1983, aged 18 years. The offence occurred on 21 July 2001. It had been committed in combination with a co-offender, Graham Edward Smith. That co-offender had been born on 14 November 1979. He came forward for sentence aged 22 years. Both offenders had very substantial prior criminal records. 7 The facts giving rise to the charge were set out in a statement of facts which is part of an exhibit tendered before the learned sentencing judge. They are set out in his Honour's remarks on sentence. I will not repeat those facts in detail. However, by way of short summary it is sufficient to note that at about 6.30 am on the morning of the day in question the two offenders, affected by liquor or some other substance, went to a dwelling house in Moree, kicked the front door in, forced the door and went into the lounge room where they confronted the occupants of the house. At that time each of them was holding a piece of wood with protruding nails. They brandished these pieces of timber. They were aggressive and abusive towards the occupants of the house. They threatened to strike the occupants. They did not in fact strike them, nor did they make any effort to strike them. They demanded bongs. They demanded money. A wallet was taken by one of the offenders and $50 was taken. The rooms of the premises were searched but apparently nothing was taken. 8 Their abuse and aggression continued throughout what was undoubtedly a very frightening episode. When the police were called and attended the premises the offenders attempted to say nothing was wrong and that they were there at the invitation of the frightened occupants of the house. 9 In due course the police left to attend to another matter and the occupants of the house, dissatisfied with the lack of police attention to the matter, went to the police station and disclosed to the authorities what had occurred. Subsequently the offenders were arrested. 10 The trial judge found that the offences were committed under the influence of alcohol and some other illicit substance, having regard to the fact that each of the offenders asserted they had been drinking and smoking cannabis from 9.00 am the previous day. 11 As to the co-offender, the trial judge noted his extensive record and the reference in the pre sentence report to his serious problems with alcohol, cannabis and amphetamine use in respect of which he had sought no assistance. He had taken whilst in gaol, apparently for the first time, steps to seek to come to grips with that problem. 12 He is a person of whom, it could be said, having regard to what was said in the Probation and Parole report, that although he expressed a desire to address the drug problem, he appeared to be a person of whom the Service considered that further involvement by the Service would be unproductive. It was questionable, so the trial judge found, referring to an earlier report, that he could sustain an interest in further eduction long enough to fulfil his potential. The trial judge noted the potential within the accused and the pity his lack of utilising that potential engendered. He had a dysfunctional background and had led an aimless life, leaving school at an early age. 13 The co-offender was on bail at the time of the commission of the offence and he was subsequently sentenced to prison terms totalling five months. 14 The trial judge accepted in the case of the co-offender that the plea of guilty was a genuine indication of remorse and contrition for his criminal conduct on this occasion and this entitled the offender to a discount. 15 He then turned to consider the circumstances of the present applicant. He noted that the applicant was younger, and indeed much younger than his co-offender. He referred to his domestic circumstances, his dysfunctional family, and the abuse he and his mother had suffered in the family relationship. That abuse had caused him to leave home and suffer a disrupted early life. An interrupted schooling had barely left him able to read and write, and although he had a substantial prior record and involvement in alcohol, he had not infringed the rules whilst he had lived with his grandmother, who had been a disciplinarian. His Honour noted he had apparently thrived under the regime but eventually could not stomach it and returned to Moree where he again commenced to get into trouble. 16 Before the court there was material from the Roy Thorn Rehabilitation Centre and the Orana Rehabilitation Centre, which had assessed the applicant as suitable to attend programs run by those services. The drug unit of the Tamworth Correctional Centre had made a number of observations about the applicant, to which his Honour referred. In particular, reference was made to observations on many of the matters to which I have referred, such as the applicant being a weekly binge drinker, who drinks to inebriation. His Honour referred to an episode in the report in which the counsellor said:- "Although Alfred has paid lip service to wanting to address his substance abuse, it is the writer's opinion that he has not felt the full consequences of his offending behaviour, therefore, minimising his motivation to change at this stage". 17 His Honour continued in the quote from that report he included in his reasons for sentence to refer to some prospects of rehabilitation, notwithstanding the alcoholism, and to the counsellor's view that the domestic circumstances of the applicant's de facto wife were such as might assist in rehabilitation, although it was noted that the applicant was a "strong candidate for relapse" and "he is already fairly institutionalised". 18 His Honour said that he accepted the plea entered at the first practical opportunity as and a sign of full remorse and contrition. There is no reason to apprehend his Honour did not in that regard sufficiently take those matters into account and apply an appropriate discount. 19 His Honour noted this applicant too was on bail waiting to be dealt with "on a similar type charge in the Children's Court". I have referred to this matter already. 20 His Honour turned to a consideration of the objective facts and submissions of counsel and concluded:- "To my mind the criminality displayed by each offender in committing this offence is so identical that I cannot and I am unable to differentiate between either accused, even bearing in mind that the offender Duncan is some years younger than Smith, but I do not feel in the light of their prior criminal history, and the fact that both of them were on bail at the time this offence was committed, that I can or should distinguish between the sentence I propose to subject each of them to." 21 His Honour referred to the sentence the co-offender had been serving at the time of sentence for this offence, and the fact that this applicant was awaiting the proceedings in the Children's Court in respect of the matter on which he was on bail. He concluded rightly, one can only agree, that it was a most serious invasion of a home in which three persons were subject to a period of terror, even of short duration. He concluded that from a specific and general deterrent point of view it had to be brought home to these offenders and others that such conduct in such circumstances would be severely dealt with. He concluded, having regard to the matters for which the discount was appropriate, to the applicant's remorse and rehabilitation as well his having come from a disadvantaged background (referring, I apprehend, to what the Chief Justice said in Regina v. Fernando [2002] NSWCCA 28), that nonetheless in both cases a full-time sentence was required to reflect the community's abhorrence of this type of behaviour. His Honour concluded the appropriate sentence was a full time custodial sentence of three years and four months with a non-parole period in each case of 18 months. 22 His Honour passed sentence accordingly on the co-offender, but having regard to the sentence he was serving and which would expire on 13 January next, his Honour passed sentence in such a way that the sentences would run in part concurrently. 23 In respect of the present applicant, whilst noting that sentence would ordinarily date from the date on which the offender entered into custody, his Honour concluded he would not do that in this case, taking into account that "Duncan on the other hand is not subject to any gaol sentence but was on bail awaiting to be dealt with on a similar type offence in the Children's Court at the time of his arrest." 24 His Honour decided that the sentence should date from the day of sentencing in anticipation that the Children's Court, if it returned a finding of guilt in relation to the matters presently outstanding, or if those matters were proceeded with, would take into account the fact that he had dated the sentence from its passing. His Honour noted he did not know what would happen in the Children's Court but thought in all the circumstances of the case he should subject both offenders to the same sentence and to the same conditions. His Honour noted both offenders appeared to him to be street wise and there appeared to be no reason for distinguishing between them. 25 He made various recommendations that might assist the rehabilitation of the offenders whilst on parole. 26 It was the first occasion on which the applicant had been sentenced to full time adult custody. 27 When the matter came before the learned magistrate the District Court sentence was noted and it was submitted, both on behalf of the prosecution and by the applicant's counsel, that from a practical point of view there was nothing much the learned Children's Court Magistrate could then do and it was in recognition of those matters that the magistrate disposed of the matter in the way I have already referred to. Thus the applicant did not receive the benefit of concurrence his co-offender did. 28 The submissions that have been made on this application contend for four errors in what the learned trial judge did, the first being that the learned sentencing judge erred in mis-applying principles as to parity by determining not to distinguish between the offenders, notwithstanding the difference in their ages. The second, that the learned sentencing Judge erred in failing to give adequate weight to the applicant's extreme youth. I will deal with those two grounds together. 29 It is apparent that the learned sentencing judge entirely understood the distinction between the two in terms of age but further understood there was no basis to distinguish between them as to criminality or as to prior record. Insofar as his determining that the sentence should date from the date it was passed in each case, he did in the upshot confer a benefit upon the co-offender which was not shared by this applicant. But otherwise I see no basis of error in what the trial judge did in failing to distinguish between them. True it was the applicant was some three months off the age in which he would have been by law a juvenile, but nonetheless he was an adult and his criminality was the same as that of the co-offender, an adult. 30 There is no basis for distinguishing between them on the basis that one was the instigator or one was a follower, as has been conceded on this appeal. Although the applicant was youthful, his youth had been marked by his extensive criminal record and the circumstances that the trial judge referred to, he did not seem to show any substantial signs of change. In my view it is not possible to say that the trial judge erred so as to warrant any interference with the sentence on either of the two grounds so far referred to. 31 Two further grounds are taken, that the learned sentencing judge erred in failing to back date the sentence to the date the applicant was arrested and entered custody; and the resultant sentence predicated upon errors outlined in the other matters that had been put forward, and taking into account the plea of guilty, is manifestly excessive. 32 The commission of offences whilst on bail is regarded by the courts most seriously and it has been stated that sentences for offences so committed will frequently be longer than they would otherwise be, absent such an aggravating factor, particularly where there is a lengthy criminal record showing a contempt for the law, or a lack of indication of rehabilitation. In such cases, the sentence is likely to be greater than it will be for those who commit such an offence for the first time, ie., without such a criminal record, or such circumstance of aggravation. But even given those matters, it would appear to me there is no reasonable basis for his Honour refusing to follow the long standing practice in this court of dating the sentence from the time at which the applicant first entered into custody and thus allowing for the period in pre-existing custody solely referable to the offence. 33 It appears as if his Honour sentenced on the supposition that something would be done in the Children's Court by way of sanction for the conduct for which the applicant was before that court which would be in addition to the sentence, which his Honour had passed. Because of the timing of events such a thing did not occur but, in any event, as I have earlier pointed out, his Honour intended to deal with them alike, although he recognised he was giving some form of leniency to the co-offender by the two sentences running partly concurrently. I apprehend it was only because he expected that some countervailing effect would be caused by the sentence of the Children's Court and did not intend compensating some advantage to this applicant to preserve parity. 34 In those circumstances, although I would reject the ground that the sentence is in the circumstances manifestly excessive, I accept the submission that the learned trial judge erred in failing to back date the sentence to the date he was taken into custody. Otherwise, in my view the sentence should not be disturbed. 35 In those circumstances I would grant leave to appeal and allow the appeal, quash the sentence imposed below and in lieu thereof substitute a sentence of imprisonment for three years and four months commencing on 24 July 2001 to expire on 23 November 2004, and a non parole period to date from 24 July 2001 and to expire on 23 January 2003. 36 CARRUTHERS, AJ: I agree. 37 GREG JAMES, J: The orders shall be as I have proposed. ********