New South Wales Court of Criminal Appeal CITATION : Regina v Warren Richards [2002] NSWCCA 84 FILE NUMBER(S) : CCA 60603/01 HEARING DATE(S) : 21 March 2002 JUDGMENT DATE : 21 March 2002 PARTIES : Regina Warren Richards JUDGMENT OF : Greg James J at 15; Buddin J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0009 LOWER COURT JUDICIAL Blanch CJ/DC OFFICER : COUNSEL : PG Ingram (Crown) Applicant in person SOLICITORS : SE O'Connor (Crown) CATCHWORDS : Break enter and steal - suspended sentence - breach of conditions of suspended sentence by commission of further break enter and steal offence - discount for plea of guilty not quantified - ill-health of dependents - "special circumstances" - sentence backdated and to run concurrently - not manifestly excessive - whether power existed to order disqualification of licence where no conviction for offence of drive whilst disqualified it being on a Form 1 - power exists to impose "ancillary orders" in such circumstances LEGISLATION CITED : Crimes Act 1900 DECISION : Leave to appeal granted. Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60603/2001 GREG JAMES J BUDDIN J THURSDAY 21 MARCH 2001 REGINA V WARREN JAMES RICHARDS Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court. 2 It is necessary to relate something of the history of the matter in order to place the present application in its proper context. 3 On 18 May 2000 the applicant was sentenced in the District Court in respect of an offence of break, enter and steal committed in February 2000. For that offence he was given a nine month suspended sentence upon the condition that he enter a bond to be of good behaviour. 4 The applicant breached that bond when on 12 August 2000 he committed a further offence of break, enter and steal. The applicant was arrested and charged with that latter offence after being found in possession of a number of items which were identified by the owner of the premises, which the applicant had broken into, as belonging to her. She was a 77 year old woman living in a retirement village. The property included a CD/radio; a leather wallet; a quantity of cash; a remote door device; a purse and personal papers belonging to the victim. The applicant when interviewed by the police maintained that he had found the items on the footpath. 5 The charge of break, enter and steal which was laid pursuant to s 112(1) of the Crimes Act attracts a maximum penalty of 14 years' imprisonment. In September 2000 the applicant was granted bail by the Supreme Court upon condition that he undertake a drug rehabilitation program. He breached the conditions of that bail on a number of occasions and in a number of respects. On 24 April 2001 whilst on bail the applicant committed further offences. They included take and drive a vehicle, having in his possession an implement capable of being used to enter and drive a vehicle, goods in custody and drive whilst disqualified. On 21 June 2001 at Campbelltown Local Court the applicant was sentenced to six months' imprisonment for a further two offences of possessing unauthorised firearms. These sentences were ordered to commence on 4 May 2001 which appears to have been the date upon which he went into custody. 6 In respect of the break, enter and steal offence committed on 12 August 2000, and taking into account the matters committed on 24 April 2001 which were on a Form 1 document, the applicant was sentenced to three years' imprisonment with a non-parole period of two years with both periods being backdated to commence on 4 May 2001. In respect of the breach of the bond attached to the suspended sentence the applicant was sentenced to a concurrent fixed term of nine months' imprisonment. That sentence was also fixed to commence on 4 May 2001. It is in respect of those sentences that the current application is made. 7 One real difficulty confronting the applicant when he stood for sentence was that he had, at the age of 30, accumulated a significant number of prior convictions, many of which were for offences of break, enter and steal. On several occasions he had been imprisoned for such offences. Nevertheless the sentencing judge expressed the view that he was "particularly impressed by the fact that he stayed out of trouble for that five year period [between 1995 and 2000]…which to my mind demonstrates that he's got the ability to do that if he would only put his mind to it." That his Honour said "demonstrate[d] a very real capacity to be rehabilitated." 8 The sentencing judge also took into account the fact that the applicant had pleaded guilty both for its utilitarian benefits and for his contrition. His Honour also took into account the fact that the applicant's wife was ill and required constant medical attention and that one of the couple's five young children also suffered from a serious medical disability. It was expressly conceded by the applicant's representative during the sentencing proceedings, that in the circumstances of this case the impact upon the applicant's dependents of a custodial sentence being imposed upon him would not be regarded as exceptional. The sentencing judge found "special circumstances" because his Honour thought that a longer than normal period under supervision was required in order that the applicant may be able to get the benefit of a structured environment within which to get the assistance necessary to enable him to rid himself of his dependence upon drugs. 9 The applicant who appeared unrepresented in this Court provided written submissions in support of his application which he amplified in oral argument. 10 The applicant complains that he did not get the benefit of a 25% discount for the plea of guilty. Although his Honour did not quantify the discount which he allowed for the plea of guilty, I would not be prepared to assume that his Honour did not allow for an appropriate discount. Indeed the sentences which his Honour imposed, and the way in which they were structured, provide the clearest indication that they were arrived at only after an appropriate discount was allowed on account of the plea of guilty. 11 The applicant also points to his wife's ill-health and that of his child and of the difficulties occasioned to himself and his family by reason of his incarceration in a country gaol. In my view his Honour considered and gave such weight to these matters as could be afforded in the circumstances. 12 In respect of the drive whilst disqualified charge on the Form 1, his Honour disqualified the applicant from driving for a period of twelve months. In its written submissions the Crown purported to concede that the sentencing judge had no power to make an order disqualifying the applicant from driving since the applicant was not convicted before his Honour as is required by s 25A of the Road Transport (Driver Licensing) Act 1998. However it is necessary to also have regard to s 34 of the Crimes (Sentencing Procedure) Act 1999 which is set out below: (1) If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence. (2) An offender with respect to whom an ancillary order is made has the same rights of appeal as he or she would have had if the order had been made on the conviction of the offender for the further offence. (3) An ancillary order for an offence taken into account lapses, by operation of this subsection, if the offender's conviction for the principal offence is quashed or set aside. (4) In this section, "ancillary order" means an order or direction with respect to restitution, compensation, costs, forfeiture, disqualification or loss or suspension of a licence or privilege. 13 When that provision was drawn to the Crown's attention during the course of oral argument, the submission originally made was withdrawn. In my view it was appropriate for the concession to have been withdrawn because that provision makes it perfectly plain that his Honour did indeed have power to make an "ancillary order" for disqualification of the applicant's licence. 14 I am far from persuaded that any error of fact or law infected the sentencing process. I propose the following orders: 1. Leave to appeal granted. 2 Appeal dismissed. 15 GREG JAMES J: I agree. The orders will be as proposed by Buddin J. ********** 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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