R v Crowe [2002] NSWCCA 245

New South Wales Court of Criminal Appeal

CITATION : R v Crowe [2002] NSWCCA 245 FILE NUMBER(S) : CCA 60696/01 HEARING DATE(S) : 20 June 2002 JUDGMENT DATE : 20 June 2002

PARTIES : Regina (NSW) Matthew Bruce CROWE (Applicant) JUDGMENT OF : Dunford J at 1; Adams J at 54

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0552 LOWER COURT JUDICIAL Dodd DCJ OFFICER :

COUNSEL : PG Ingram (Crown) PR Boulten (Applicant) SOLICITORS : SE O'Connor (Crown) Carbone Anderson (Applicant) CATCHWORDS : CRIMINAL LAW - sentencing - break, enter & steal - break-in of a city jewellery store - large amount taken. LEGISLATION CITED : Crimes Act 1900, s 112(2) Crimes (Sentencing Procedure) Act 1999, s 44(2) Re Attorney-General's Application (No. 1); R v Pomfield & Ors [1999] NSWCCA 43, 48 NSWLR 327 CASES CITED: R v Qutami [2001] NSWCCA 353 R v Simpson [2001] NSWCCA 534 R v Hayes [2001] NSWCCA 410 DECISION : Leave to appeal granted. Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL 60696/01

DUNFORD J ADAMS J

Thursday, 20 JUNE 2002 R v Matthew Bruce CROWE Judgment 1 Dunford J: This is an application by Matthew Bruce Crowe for leave to appeal against the sentence of imprisonment for 6 years with a non-parole period of 4 years imposed on him by Dodd DCJ in the District Court at Sydney following his plea of guilty on arraignment to a charge of aggravated break, enter and steal contrary to s 112(2) the Crimes Act 1900, which offence carries a maximum penalty of 20 years imprisonment. 2 In sentencing the applicant his Honour also took into account a further offence on a Form 1, namely possession of a prohibited drug, to wit a small amount of cannabis. 3 The facts of the matters briefly are that at about 7.30 p.m. on Thursday, 8 February 2001, two men, including the applicant approached the front door of Bvlgari Jewellers at 75 Castlereagh Street, Sydney which store retails mainly expensive watches, necklaces, bracelets and other jewellery. The other man was armed with a sledge hammer and both had their faces disguised by various types of clothing. The front glass door to the store was closed but the co-offender smashed it in with the sledge hammer. 4 They both then entered the store through the smashed door and approached the staff wielding the sledge hammer. The staff then either were in, or ran to, the rear of the store where they locked themselves in the office. 5 The applicant and his co-offender then ransacked the store, stealing numerous jewellery items and damaging a number of display cabinets. They approached the rear door leading to the office which they attempted to force open by kicking it and calling out to the persons inside the office demanding that the staff open the safe. 6 The staff did not open the door and the burglars did not gain access to the office area or the safe. They then attempted to leave the store with the stolen jewellery items valued at approximately $750,000 leaving glass and jewellery strewn over the floor and a screwdriver on the floor near one of the display cases indicating that they had come prepared to gain access to such display cases. 7 They then realised that they had been locked in the store as the front door had closed behind them on entry so, using the sledge hammer, the co-offender smashed a further hole in the front glass door. They jumped through the hole in the glass door and entered a stolen motor vehicle which was waiting outside driven by a third offender, which vehicle then left the area at high speed. 8 Two weeks later on Thursday, 22 February at 7.30 p.m. police followed the applicant together with two other persons from Glebe to Parramatta Road in Strathfield at which time the applicant was driving a vehicle registered to his father. The vehicle was stopped, police searched the vehicle, and the applicant's sister was searched and found to be in possession of a $60,000 white gold and diamond necklace confirmed to have been stolen from the Bvlgari store on 8 February. 9 The necklace was quite unique and had an identification tag attachment. The applicant, his sister, and the other occupant of the vehicle were then conveyed to Burwood Police Station where the applicant, as was his right, declined to be interviewed. 10 One of the employees of the store said she was particularly terrified and feared for her life, and had trouble sleeping for several days. 11 The applicant has been in custody since his arrest on 22 February 2001. 12 He was born on 8 December 1976, and was aged 24 at the time of the offence. 13 He has previous convictions extending back to 1995 including six counts of stealing and three of attempted stealing at Wyong Local Court on 7 April 1995, and convictions for malicious damage and larceny at the Downing Centre Local Court on 6 June 1996 arising from an occasion when he smashed a car window and stole a mobile phone from inside the car. 14 On 21 July 2000 he was convicted of being an accessory after the fact to robbery, when $824 had been stolen from the Hunters Hill post office, the robber being armed with a screwdriver. He was sentenced to imprisonment for 18 months from 10 June 2000 with a 6 month non-parole period. He was released on parole on 8 December 2000, and remained on parole at the time of the commission of this offence. 15 Although his parents separated in 1999 he remained close to both of them, particularly his father with whom he lived, as did his two sisters, one of whom he involved in his criminal activity, and who was subsequently charged with receiving the necklace. 16 After his release from prison, his father gave up his previous longstanding employment and set up a lawn mowing business, primarily to provide the applicant with employment along with some supervision and support. 17 The applicant had left school at age 17 having completed his Higher School Certificate, and since then had had a number of jobs over the intervening 8 years which included approximately 2 years of unemployment. 18 Apart from his parents separation to which I have already referred, and with both of whom he remained close, there was no evidence of any family, social or financial deprivation, and no drug problem, although his father said in evidence on the sentence proceedings that after leaving school he associated with undesirable companions, and the police Facts Sheet described him as an associate of the criminal element. 19 It was suggested that the offence was committed because he had been asked to mind $10,000 by a friend, and he spent a part of it and gambled the rest in an effort to recover what had been spent. 20 He told his father that he had only got $10,000 out of the proceedings of this burglary although there was a legally intercepted telephone call on 17 February in which he made comments suggesting that he had received about $20,000. 21 His Probation Officer in the Pre-Sentence Report and learned sentencing judge were both very skeptical of this story, unsupported by any evidence from the applicant, the friend, or anyone who saw him gambling, and with no details of when or where he lost the money. 22 His father gave evidence that the applicant had told him he was minding some cash for a friend, but also said that since his release from prison he had kept an eye on the applicant who only went out with his girlfriend and with his father to the hotel on Saturday afternoon where he would have a few bets totalling $50 to $60 per week. 23 In relation to this his Honour said: "Your father has confirmed that you told him you were minding some cash for a friend. If it were not for your father's evidence I would have great difficulty as did the author of the Pre-Sentence Report, in accepting this unlikely story, but in any event it does not matter in terms of this sentencing exercise and cannot provide any kind of excuse."