New South Wales Court of Criminal Appeal CITATION : Regina v Gorrel [2002] NSWCCA 307 FILE NUMBER(S) : CCA 60573/01 HEARING DATE(S) : 25 June 2002 JUDGMENT DATE : 25 June 2002 PARTIES : Regina v Colin Robert Gorrel JUDGMENT OF : Smart AJ at 1,32; Blanch AJ at 31 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0476 LOWER COURT JUDICIAL Backhouse DCJ OFFICER : COUNSEL : (A) A Francis (C) W Dawe QC SOLICITORS : (A) D J Humphreys (C) S E O'Connor CATCHWORDS : Sentencing - inadequate weight given to offender disclosing offences - mis-application of Pearce v The Queen - multiple offences - insufficient weight given to subjective features - service of sentence in protection LEGISLATION CITED : Crimes (Sentencing Procedure) Act CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v Ellis (1986) 6 NSWLR 603 DECISION : See paras 30 and 32 IN THE COURT OF CRIMINAL APPEAL 60573/01 SMART AJ BLANCH AJ Tuesday, 25 June 2002 REGINA v COLIN ROBERT GORREL JUDGMENT 1. SMART AJ: Colin Robert Gorrel seeks leave to appeal against the severity of the following sentences imposed in the District Court: Charge 3 – aggravated break, enter and steal - Imprisonment for 8 years with a non-parole period of 4 years Charges 2 & 5 -- Drive conveyance without owner's consent - Imprisonment for 12 months Charge 4 -- Possess carbreaking implements - Imprisonment for 9 months Charges 1, 6-14 -- break, enter and steal (10 counts) - Imprisonment for 2 years 6 months on each count. All sentences commenced on 30 March 2001. 2. The applicant pleaded guilty to all counts. The judge found the pleas of guilty were entered at the first available opportunity and discounted the sentence on the basis of the utilitarian value of the pleas by twenty five per cent. Charge 3 3. On 30 March 2001, the applicant parked a red Ford Falcon older model in front of the home 5 Orchard Road Beecroft. That car had been stolen earlier that day at Pendle Hill. The applicant knocked on the door and nobody was at home. He gained entry via a window. He was with an acquaintance called James. They searched the house. As the applicant was searching the study, the owners came home. The applicant said that he wrestled with the male owner, there was a bit of a scuffle which then moved to the back porch. The owner threw the applicant over the back porch. The applicant landed on his back and ran away. He was caught by two police officers nearby. In his backpack and clothes the applicant had items stolen from the house. That day the applicant made full admissions in his police record of interview. James escaped. The circumstances of aggravation were that the break, enter and steal was committed in company. Charges 2 and 4 4. On 30 March 2001 the applicant drove the red Ford Falcon, knowing that the conveyance had been taken without the consent of the owner. He was present when it was stolen from a carpark at Pendle Hill, near the railway station. The applicant also had car breaking implements in his possession. Charge 5 5. On 21 January 2001 at Dundas Valley the applicant allowed himself to be carried in a conveyance, namely a white Ford Falcon, knowing that it was taken without the consent of the owner. Without the applicant's admissions, the police case on this charge was of moderate strength only. Charges 1 and 6 to 14 6. Details of the various break, enter and steal offences involving a dwelling house are as follows: Date Location of Details of goods taken premises or their value 28 March 2001 Wentworthville Discs, disc player & camera - pawned 15 March 2001 Dundas Property & cash – total value of $400 20 February 2001 Dundas Property to value of $300 15 January 2001 Epping Property to value of $11,590 22 March 2001 Cheltenham Property to value of $6700 21 March 2001 Denistone Property to value of $8180 12 January 2001 Epping Property to value of $16.000 19 February 2001 Dundas Property to value of $10,500 2 & 4 March 2001 West Ryde Property to value of $2000 The total value of the property stolen was $43,000. A small amount of the property stolen has been recovered. Each of the offences listed in the table was committed while the owners were absent from their homes. Each involved breaking into such homes. 7. The police were able to establish a case against the applicant on the first break, enter and steal offence because his fingerprints were found behind the frame of the window flyscreen at the point of entry. 8. On 4 April 2001, starting at 11.51am, the police conducted a record of interview with the applicant. He agreed to accompany the police on a drive through the Eastwood Dundas area and show them those houses where he had committed break, enter and steal offences. The applicant then accompanied the police on a drive around the Eastwood, Epping and Dundas area and showed them the dwelling houses where he had committed those offences. He then returned to the police station and underwent a further interview, in which he confirmed details of the offences which he had committed. 9. The applicant was born on 9 July 1978. On 7 November 2000 he was placed by Penrith Local Court on a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 in respect of the offences of possess prohibited drug, administer prohibited drug, breach of recognisance of 5 August 1998 and two counts of make false instrument. He was required to attend drug rehabilitation and to be supervised for two years by the New South Wales Probation Service. 10. The applicant has had a number of convictions for offences of dishonesty, starting in 1996. He failed to observe the terms of a recognisance within a very short period and was gaoled for three months. He was gaoled for four months for dishonesty and a drug offence in August 1998 and also for five months for break, enter and steal. He committed a breach of a recognisance he was given in August 1998. 11. The judge stated that in addition to the discount for the early plea, the applicant was entitled to a further discount for telling the police of the further offences which he had committed and which they could not prove. The judge said that she would not translate that discount into a percentage figure for the considerable assistance he had given the police. That tends to understate the assistance. On some charges the police had no case without the applicant's admissions. 12. The judge further found that the applicant had shown contrition for his participation in the fourteen offences in a short period of time (12 January-30 March 2001). All the offences were committed to obtain funds to feed his drug habit. 13. The Pre-Sentence Report reveals that the applicant had a difficult period in his teenage years, leaving home at the age of fifteen. He had a stepfather and stepbrothers. He commenced using amphetamines at age eighteen and heroin in later years. He told the judge that he had been using heroin for some two years prior to these offences. He was admitted to the William Booth program and also in the Odyssey House program but did not abide by the rules of those two organisations and left of his own accord. He said that when he entered those institutions he was not really focusing on rebuilding his life, rather he was pleasing his parents. 14. The judge thought that the applicant had finally reached recognition of the serious nature of the offences. He was trying to deal with his drug problem. He had been clean for about five months and realised he had a long way to go. He does not wish to continue his previous lifestyle. His parents will continue to support him. 15. The Pre-Sentence Report stresses the applicant's immaturity. This made him a prime candidate for the sexual assault to which he was subjected during an earlier period in gaol. He has been placed in protection by the gaol authorities for this reason. 16. The judge correctly found that there were special circumstances. These included the youth of the applicant and his need for an extended period of supervision when released on parole and the period he has spent and will spend in protection. These matters also lead me to find special circumstances. 17. The judge, when imposing the head sentence and non-parole period of four years said: "In assessing that period, I have had regard to the criminality of that offence which is more serious and I have also, in setting that sentence, taken into account the totality principle involving the remaining thirteen offences." 18. It is not clear what that sentence means. If the judge meant that the longer sentence also reflected what she regarded as the total criminality for all offences, that would be an erroneous approach. On the other hand, did she mean that in fixing the sentence in question she was having regard to the principle of totality so that the sentences did not exceed a proper overall assessment of the applicant's criminality? My view is that the former meaning is to be attributed to the passage in question. 19. The applicant contended that the judge erred in these respects: (a) she gave insufficient weight to the assistance provided by the applicant; (b) she did not give any discount for contrition; (c) she mis-applied Pearce v The Queen (1998) 194 CLR 610; (d) she glossed over the applicant's subjective features and did not give them sufficient weight; (e) she imposed a sentence which was manifestly excessive. Insufficient Weight To Assistance Provided 20. Where an offender has provided information of his own offending which is not known or cannot otherwise be proved he is entitled to a significant element of leniency. While the judge said that the applicant was entitled to a further discount on this account and that she would have regard to the considerable assistance which he gave to the police, the sentences imposed do not reflect that a significant discount has been given. This point applies to charges 6 to 14. Concurrent sentences of two and a half years imprisonment in respect of these offences do not reflect the significant discount of which R v Ellis (1986) 6 NSWLR 603 speaks. I do not think that this point is met by saying that the judge was lenient in imposing concurrent sentences. All the offences took place in a very limited period of time (about ten weeks). Contrition 21. The applicant submitted that although the judge found that he was contrite and remorseful, the sentences imposed do not reflect this. The discount which she gave was for the utilitarian value of the plea. It is not clear what course the judge took in relation to contrition. She may have taken it into account when fixing the sentences. Misapplication Of Pearce v The Queen 22. The better view of the passage earlier quoted from the judge's remarks is that she misapplied Pearce v The Queen. In setting the sentence on the aggravated break, enter and steal offence, she was taking into account the overall criminality of all the offences. 23. On this point, the Crown accepted that it was apparent that the judge did not formulate her sentences in accordance with Pearce. In its written submissions, the Crown wrote: "...It is clear that her Honour formulated the sentence for the most serious offence committed in an endeavour to cover the criminality involved in each of the offences and also give effect to the cooperation of the applicant in line with the Ellis principle." 24. The Crown contended that the error in formulating the sentences favoured the applicant and that if the judge had imposed the appropriate sentence for each of the break, enter and steal offences she may have felt constrained to accumulate some of those sentences or at least a portion of them. That would not be a sound course to take when the bulk of the offences came to the knowledge of the police as a result of the applicant's disclosures. Before that they did not have a person whom they could charge with them. Subjective Features 25. As earlier appears, the applicant gave evidence. He was not cross-examined. The judge appropriately asked him quite a number of questions. The applicant complained that while the judge referred to the applicant's subjective case, she did not refer to important subjective features. It is true that she did not refer to all the subjective features in her remarks. She was not obliged to do so. She was conscious of the contents of the pre-sentence report. Manifestly Excessive 26. The applicant submitted that the overall sentence was outside the permissible range when the following matters are given proper weight: (a) the applicant's co-operation with the police, admissions and disclosure of otherwise undetectable guilt; (b) the applicant's plea of guilty; (c) the applicant's remorse and contrition; (d) the applicant was to serve his sentence in protection, having been sexually assaulted at the John Moroney Centre in 1998; (e) the applicant had only served two short fixed terms of imprisonment in the past; (f) the applicant had only one offence of break, enter and steal on his antecedents; (g) the progress of the applicant towards rehabilitation; (h) proper consideration of his personal history. 27. The applicant has a high level of potential academic achievement. This suggests that if the applicant can overcome his immaturity and abstain from drug use he has a good future ahead of him. 28. Considerable weight must be attached to the applicant having to serve his sentence in protection, particularly because of the need to minimise sexual assaults upon him. 29. The gravity of the offences is beyond argument. Nevertheless, the sentences are attended by error, as has been demonstrated. The sentences were not imposed in accordance with and do not reflect the discounts which should have been given for the disclosures by the applicant of his criminality and for his contrition. There is the potential for rehabilitation including some hopeful indications. Nevertheless, given the applicant's past history including his lack of application on previous rehabilitation programs, caution must be exercised. 30. Taking into account the gravity of the offences, the discounts to which the applicant is entitled, the applicant's subjective features, the principle of totality, and the matters referred to in the affidavit of Madeline Schneider of 20 June 2002 I propose the following orders: (1) Leave to appeal granted. Appeals allowed in part. (2) Dismiss the appeals against the sentences of imprisonment for twelve months on charges 2 and 5 (drive conveyance without owner's consent). (3) Dismiss the appeal against the sentence of imprisonment for nine months on charge 4 (possess car breaking implements). (4) Dismiss the appeal against the sentence of imprisonment for two years six months on charge 1 (break, enter and steal). (5) Allow the appeals on charges 6 to 14 both inclusive (break, enter and steal), sentences quashed. In lieu of the sentences imposed the applicant is sentenced on each charge to imprisonment for a fixed term of eighteen months to commence on 30 March 2001 and to expire on 29 September 2002. (6) Allow the appeal on charge 3 (aggravated break, enter and steal). Sentence quashed. In lieu of the sentence imposed, the applicant is sentenced to imprisonment for five years six months, commencing on 30 March 2001 with a non-parole period of three years, commencing that day and ending on 29 March 2004. 31. BLANCH AJ: I agree. 32. SMART AJ: The orders of the Court will be as I have proposed. **********` 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. 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