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." I agree with his Honour's comments. 24 This was a most serious offence. Unlike most offences of this nature, it was not a case of breaking into someone's dwelling house when such person was expected to be absent or asleep and stealing such items as were readily removable such as television sets, videos, cash, personal jewellery et cetera, which might be sold at the local hotel or elsewhere to purchase drugs to feed a habit or addiction; but it was a well planned attack on a jewellery store in the Central Business District of Sydney at a time when the store would be free of customers, it being just after closing time, but the jewellery, would still be in display cases and cabinets, and access could hopefully be had to the safe. This must have involved preparation, surveillance, timing and co-ordination. 25 The applicant and his co-offender were clothed so as to be unidentifiable by facial recognition and armed with necessary implements, the sledge hammer and the screwdriver for the front door and display cabinets. In addition another accomplice was waiting outside in a stolen vehicle to effect a speedy getaway. 26 All this resulted in a theft of almost three-quarters of a million dollars worth of jewellery, very little of which has been recovered, and a trail of wanton damage throughout the store. 27 It was submitted that the learned sentencing judge erred in characterising it as the result of professional planning organisation and execution. In my view he made no such error. The planning was detailed and sophisticated. The organisation as to location, timing and getaway was extensive and the execution was so efficient that no arrests were made for two weeks, and it appears that the co-offenders in the burglary have not been caught at all. As far as the evidence shows, only one necklace that was worn by the applicant's sister at the time of their arrest has been recovered. 28 In his Remarks on Sentence, his Honour took as a starting point the guideline judgment of this court in Re Attorney-General's Application (No 1); R v Pomfield & Ors [1999] NSWCCA 43, 48 NSWLR 327, and noted the various aggravating features referred to in para [48]. 29 He then considered matters in mitigation including the plea of guilty, the question of remorse, special circumstances, prospects of rehabilitation, statistics kept by the Judicial Commission and concluded that the case fell towards the upper end of seriousness for such offences. 30 Four particular grounds of appeal have been argued. Firstly, it was submitted that his Honour gave insufficient weight to the plea of guilty. 31 In relation to this his Honour said: "As against that, clear matters in mitigation are your early plea, and I intend to take that into account fully under the guideline judgment of the Court of Criminal Appeal in Thomson to the extent of 25 per cent discount. It has been submitted on your behalf that the Crown might not otherwise have a strong case. I am not certain of that, but in any event I give you the full benefit of the available discount. It is put on your behalf that I should accept that you have become remorseful, that you have expressed a change in attitude, and that you have matured. The evidence of any of that is extremely thin. As I have said before, I am not satisfied that you have, in fact, come to a position where you are genuinely remorseful, or that your attitude has changed so that you are unlikely to commit such crimes in the future, or that you have matured in any way." 32 It is submitted the effect of what his Honour did was to allow 25 per cent for the utilitarian value of the plea and nothing for contrition or remorse which was necessarily involved in the plea of guilty because it was submitted, as I say, that the Crown case was not particularly strong, and so the plea was not merely a case of bowing to the inevitable. Although his Honour referred to the "early plea", R v Thomson, and the "full benefit of the discount" in arriving at a discount of 25 per cent for the plea of guilty, this was not a plea at the earliest possible time, and the utilitarian value of the plea did not justify a discount of 25 per cent which Thomson described as a maximum for the utilitarian value for such plea, to be confined to cases where such plea is entered at the earliest possible time, and is generally not appropriate where entered after the case has been set down for trial. 33 This plea was not entered at the earliest possible time, but only after committal and on arraignment, and it appears that the matter was mentioned on at least three occasions in the District Court prior to the plea being entered. And on at least some of those mentions the indication was that the matter would proceed to trial. 34 I would therefore regard the discount of 25 per cent as including all elements of the plea of guilty, not only to the utilitarian value. If it was limited to the utilitarian value it bespeaks error, and would need to be re-assessed. 35 In any event his Honour was not satisfied that the applicant showed contrition or remorse, neither was the person who prepared the Pre-Sentence Report, and neither am I. 36 The only evidence of remorse came in the form of hearsay evidence from his father who said that his son told him he was remorseful because he had let his father down, and also himself, and later after 11 September 2001 he said he thought of the people in the shop. 37 Later his solicitor asked the father a leading question which can fairly be described as a "Dorothy Dixer" as follows: "Would you say that he regrets what he did as far as this offence is concerned not for himself but for the people in the store?" 38 To which the father replied: "I think for the people in the store and himself, and his family and everyone. ..." 39 This testimony was, in my opinion, worthless as evidence of remorse and contrition. If the applicant was genuinely contrite or remorseful it was up to him to give sworn evidence himself on the sentence proceedings, and be subject to cross-examination, disclosing the true details of his involvement in the offence, what became of the property stolen, and so far as possible, where and how it might be recovered. 40 In R v Qutami [2001] NSWCCA 353, both Spigelman CJ and Smart AJ indicated that offenders who, instead of giving evidence themselves on sentence rely on self-serving hearsay statements made to experts should expect that such evidence will be given little weight, and in my view the same applies to similar hearsay evidence given through parents or relatives. 41 In the present case his Honour was not satisfied that the applicant was genuinely contrite or remorseful, or that his plea of guilty was motivated by such contrition or by remorse. Neither am I. Accordingly, I consider the discount of 25 per cent not inappropriate for all elements relevant to the plea of guilty, including the fact that the Crown case, although not weak was not overwhelming. 42 The second ground of appeal is that his Honour erred by characterising the offence as professional. I have already dealt with the matters relevant to this submission. 43 The third ground of appeal is that his Honour erred in failing to find special circumstances. It was submitted that as the applicant was on parole after a short period of imprisonment and committed the offence because of a gambling problem and also admitted to the Probation Service that he was smoking cannabis on an average every second day, he is going to need special and intensive supervision following his custody with particular rehabilitation measures such as gambling counselling, drug counselling, guidance as to employment and other general life skills. 44 But the applicant indicated to the author of the Pre-Sentence Report that he did not regard his gambling and cannabis use as problematic, and there was no evidence led of him in fact having a cannabis or gambling addiction. The only evidence on these issues was what was in the Pre-Sentence Report, and the evidence of his father who dismissed any drug or gambling problem. 45 As to employment guidance, his father was employing him before he committed this offence in the circumstances I have already referred to, and gave evidence that he was prepared to continue to employ him. 46 Furthermore, the period of 18 months during which he is eligible to be released on parole should, in the absence of any evidence to the contrary, be sufficient for such rehabilitation measures as may be necessary. 47 Parliament has expressed an intention that the non-parole period should generally, that is in the absence of special circumstances, be 75 per cent of the head sentence: s 44 (2) Crimes (Sentencing Procedure) Act 1999, and in R v Simpson [2001] NSWCCA 534, Spigelman CJ with whom other members of the Court agreed, said at [69]: "Section 44 of the 1999 Act, like s 5 of the 1989 (Sentencing) Act operates as a fetter or constraint on the exercise of the sentencing discretion. It operates to guide the discretion in a particular manner." and as to whether in a particular case there are special circumstances, his Honour said, at [73]: "The decision is first one of fact - to identify the circumstances - and, secondly one of judgment - to determine if those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence." 48 His Honour found no circumstances which he regarded as justifying a lower proportionate relationship between the non-parole period and the head sentence, than that referred to in s 44 (2), and I can see no error in his Honour's approach. When he was last sentenced in 2000, the proportion was varied, presumably on the ground that a longer period on non-parole period would facilitate the applicant's rehabilitation. 49 It did not, he merely graduated to a more serious offence; and there is no reason to believe that varying the proportion in this case will have any effect in this case on his rehabilitation this time. 50 Indeed if the non-parole period had not been shortened on the last occasion, he would not have committed this offence as he would have not been out of gaol at the time the offence was committed. 51 The fourth ground of appeal was that the sentence was manifestly excessive. It was submitted that although the sentence of 6 years imprisonment; or the "starting point" of 6 years whilst within the range of sentence available for this type of offence, is towards the top thereof, and that the top of the range should be reserved for truly organised criminals who commit serious retail thefts. 52 In my view there are two answers to this submission, firstly, that this offence was committed by truly organised criminals committing a serious retail theft, and secondly, as Grove J pointed out in R v Hayes [2001] NSWCCA 410, the top of the range for the most serious offences is not what appears in the statistics kept by the Judicial Commission, but in the maximum penalty specified by Parliament. 53 For these reasons I can see no error in his Honour's reasons nor do I consider that the sentence is manifestly excessive. I would therefore grant leave to appeal but dismiss the appeal. 54 ADAMS J: I agree, but I would like to add some comments of my own. 55 The first concerns the seriousness of this crime. As the learned presiding judge has made clear, this crime was associated with the deliberate infliction of considerable fear on the persons in the store. Even if the office door was not broken down, the attempt to do so by using a sledge hammer must have been terrifying for the employees who were in that office, and it must have been known to have been terrifying. Indeed, it is difficult to avoid the conclusion that it was intentionally terrifying so that the employees were paralysed by fear, and would not attempt to interfere with the crime which was being undertaken. Quite apart from any other factor, to my mind this element places the offence well within the serious range, demonstrating that the learned sentencing judge did not err in the starting point which it appears he applied before giving a discount for the utilitarian value of the plea. 56 The next comment I make is that, where there is significant objective evidence of remorse and contrition, the omission of the offender to give evidence about the matter will be of less significance, though it is never without significance. Here such objective evidence was completely lacking. The plea in the face of a strong, though not overwhelming, Crown case can fairly be seen as a calculated decision made in the offender's interests. He is not to be criticised for that, far from it. Indeed it is not only appropriate, but necessary to reward such realism. In my opinion, his Honour did so appropriately by giving the offender the maximum discount of 25%. 57 I agree with the learned presiding judge (as with his Honour at first instance) that there was no evidence which enabled there to be any conclusion fairly to be drawn of the offender's remorse and contrition. I hesitatingly accept the evidence of the offender's father that the offender had expressed to him regret in the language which has already been referred to. I do not understand the learned sentencing judge nor for that matter the presiding judge to suggest, if I might say so with respect, that the offender's father was not telling the truth in this regard. Rather, it was that evidence did not justify, in all the circumstances, a conclusion that the expression was any more than mere words. 58 DUNFORD J: The orders will therefore be as I have indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.