New South Wales Court of Criminal Appeal CITATION : Regina v Lafferty [2002] NSWCCA 118 FILE NUMBER(S) : CCA 60770/00 HEARING DATE(S) : 22 March 2002 JUDGMENT DATE : 22 March 2002 PARTIES : Regina v James Lafferty JUDGMENT OF : Dunford J at 1; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0405 LOWER COURT JUDICIAL His Honour Judge Mahoney OFFICER : COUNSEL : Crown - W.G. Dawe QC Applicant - R.J. Button SOLICITORS : Crown - S.E. O'Connor Applicant - D.J. Humphreys CATCHWORDS : Sentence appeal - break enter and steal being armed with an offensive weapon - no question of principle. LEGISLATION CITED : Crimes Act 1900 ss105A(1a), 112(2) DECISION : Application for leave to appeal granted. Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60770/00 DUNFORD J CARRUTHERS AJ Friday, 22 March 2002 REGINA v James Lafferty Judgment 1 DUNFORD J: I agree. The order will be as indicated by Carruthers AJ. 2 CARRUTHERS AJ: The applicant, James Lafferty, seeks leave to appeal against the sentence imposed upon him in the Sydney District Court of New South Wales by his Honour Mahoney DCJ on 20 November 2000. The trial that led to the conviction and sentence in question was quite short and the issues were very confined. 3 On 14 August 2000 the applicant was arraigned in the District Court on one count of breaking, entering and stealing in circumstances of aggravation, namely being armed with an offensive weapon or instrument, a screwdriver. The offence was alleged to have been committed on 19 September 1999. The applicant pleaded not guilty and his trial commenced before Mahoney DCJ, sitting alone. The maximum penalty pursuant to s 112(2) and s 105A(1)(a) of the Crimes Act, 1900, for the subject offence is imprisonment for twenty years. 4 At the trial there was no dispute on the part of the applicant that he had committed a break, enter and steal on the evening in question. The major issue, for present purposes, was directed towards the circumstances of aggravation. 5 It was accepted by both parties in the trial that the applicant had broken into a private home in Coogee while it was vacant. The occupants of that home returned, however, whilst the applicant was still present. It was conceded by him that he had moved some items enough to constitute asportation for the purposes of the offence of stealing. The applicant realised that he had been discovered and needed to escape. He fled the scene by rushing down the stairs, past the persons present. Later it seems he was identified by way of fingerprints located at the scene of the crime. 6 The only issue with regard to the elements of the offence was whether the applicant had possessed and brandished a screwdriver. The applicant denied that he in fact had a screwdriver or that he had brandished one. 7 There was a further dispute regarding part of the alleged subject matter of the property alleged to have been stolen, namely whether the applicant had stolen $2,500 in cash. The evidence of the presence of that amount of cash in the house on that evening came from one witness and his Honour was of the view that the evidence was, in the circumstances, insufficient to discharge the onus of proof which rested on the prosecution. 8 Three adults gave evidence that they had seen the screwdriver in the possession of the applicant whilst he fled. The applicant gave evidence at the trial and was cross-examined. He denied possessing a screwdriver on the evening in question. He did not raise his character and called no other evidence. 9 The learned trial judge heard submissions from both parties and proceeded to give his verdict and reasons in support of that verdict. His Honour was satisfied beyond reasonable doubt that the applicant had both possessed and brandished a screwdriver. Separately, as I have indicated, his Honour was not satisfied beyond reasonable doubt that the sum of cash had been taken. Also his Honour deleted from his consideration various items that formed the alleged subject matter of the offence. That was because the ownership of those items had not been, in the view of his Honour, properly averred in the indictment. 10 In submissions by Mr Button of counsel before this Court on behalf of the applicant, which were both detailed and helpful, he contended that the ultimate finding of the trial judge that there was insufficient evidence to establish that the relevant cash had been stolen vindicated the plea of not guilty. 11 On sentence it was shown that the applicant had a lengthy prior record. Most of his convictions were offences against property. He had been sentenced to terms of imprisonment on various occasions and had last been released from custody on 6 July 1999 and it is noted that the subject offence was committed on 19 September 1999. 12 The point is made by Mr Button that the applicant had only ever been dealt with in the Children's Court and the Local Court before, and he was not subject to conditional liberty at the time of the subject offence. 13 Aged twenty-eight years as at the date of sentence, the applicant had suffered from drug addiction for some time. He had been homeless at the time of the offence. On sentence there was evidence of some recent positive steps towards rehabilitation. There was evidence that he had spent his time in custody usefully and that his mother remained supportive of him. 14 Ultimately, on the conviction on the one count, his Honour imposed a head sentence of imprisonment for six years. His Honour directed that that sentence was to commence on the date upon which the applicant had been arrested and taken into custody, namely 14 February 2000. A non-parole period of imprisonment for three years to commence on the same date was imposed. 15 Clearly his Honour found special circumstances to justify the variation of the statutory ratio between the head sentence and the non-parole period. It is not entirely clear from a reading of his Honour's remarks on sentence what his Honour particularly had in mind with regard to special circumstances but it would appear that his Honour must have felt that there was some real possibility that the applicant may rid himself of the heroin addiction and had taken positive steps in that regard towards his rehabilitation, albeit remarks which his Honour made in respect of rehabilitation will be noted shortly. 16 Realistically, Mr Button, who both in oral and written submissions has put everything on behalf of the applicant which could possibly be advanced, conceded that the imposition of a sentence of full time imprisonment was inevitable. This necessarily flowed, he conceded, from the seriousness of the offence of which he was convicted in the light of his past record. 17 The fundamental issue is whether the subject head sentence is erroneously long in light of all the relevant objective and subjective features of the matter. Counsel spent little time on the length of the non-parole period, but did contend that if this Court, consistent with his submissions, reduced the head sentence, then the non-parole period should be consequentially reduced by the fifty per cent discount allowed by his Honour. Specifically, the major basis upon which the applicant contended that the sentence was manifestly excessive were as follows. 18 It was contended that although the offence was indeed a break, enter and steal in circumstances of aggravation, his Honour did find that it was not a true "home invasion". Further it was contended that the brandishing of the screwdriver was not premeditated. However that submission cannot stand with the finding of fact made by his Honour in the following terms: "I am satisfied beyond reasonable doubt that he did have a screwdriver to get into the place. I am satisfied beyond reasonable doubt that he took it with him and he brandished it in the way described or fairly close to the way described by Mr Di Paola". 19 Thus his Honour made no finding as to whether the brandishing was premeditated or not. There the matter must rest. 20 The applicant, it was further contended, always admitted his guilt of the basic offence of break, enter and steal. This is indeed true but nevertheless the matter went to trial and it was necessary for the Crown to tender the relevant evidence as to the break, enter and steal and the circumstances of the aggravation. I am not convinced in the circumstances, that he was entitled to any discount for the fact that there was this small measure of vindication. 21 Further, the applicant seeks to rely upon the fact that he was not on conditional liberty of any form at the time of the commission of the offence and there was only one offence for which he was sentenced. It is true that the applicant was not on conditional liberty at the time of the commission of the offence. However, having been released on 6 July 1999 from serving a sentence of six months in relation to a break, enter and steal, one must note that the subject offence took place, as I have said, only a short period later, namely two and a half months. I cannot accept, in any event, that the fact that an offender was not on conditional liberty at the time of the commission of the serious offence can be taken into account as ameliorating the degree of criminality. It is true that if an offender was on conditional liberty at the time of the commission of an offence that is, consistent with well established authority, a matter of aggravation. However I do not see why the converse should apply. 22 I will not detail the whole of the prior record of the applicant. His Honour summarised that prior record in the following convenient way: "Three times the applicant has escaped from lawful custody. Twice he has dishonestly been associated with motor vehicle offences. Four times he has committed other motor vehicle offences. Fourteen times he committed an offence of violence. And twelve times he has been convicted for offences of dishonesty". 23 One could add to this of course that this was not the first occasion upon which he had been convicted of breaking into and entering a dwelling. 24 During the sentence proceedings it was contended on behalf of the applicant that he had reached a "turning point" so far as his life of crime was concerned and his addiction to heroin. However in this regard his Honour said: "I am a long way from being satisfied that he has been fully rehabilitated. It was put to me, however, that the combination of all these positive subjective features is such that special circumstances should be found in his case. I do take into account the situation that for a person to be able to work himself off heroin after a long period of using heroin is a commendable turn of events". 25 It is this passage that leads me to the view which I earlier expressed as to the basis upon which his Honour altered the statutory ratio relating to special circumstances. 26 A further point was made by Mr Button this morning that it could be said on behalf of the applicant that a screwdriver is to be differentiated from a knife. A knife is also a concomitant of many break, enters and steal of course and the dangers of a felon being possessed with a knife needs no elaboration. However, Mr Button contended, a screwdriver has an element of being a breaking-in implement and not one used for self-defence in the event of discovery. 27 There is a point here, but one never ceases to be amazed at the number of cases that come before the courts where serious injuries have been inflicted by the use of a screwdriver. The point was also made that one must take into consideration, it is submitted, that this was a panic escape from what was, at the time of breaking and entering, an empty house. 28 Other cases which have come before this Court involving the subject offence were referred to by counsel for the applicant together with the JIRS statistics. In the special circumstances of this particular case, although those statistics do give some insight into sentencing patterns, I am not satisfied that they can be brought to the aid of this applicant. 29 There is no doubt of course that a head sentence of six years is towards the top of the range for the subject offence. Although no actual violence was occasioned to anyone the fact is that the plea of not guilty, (which the applicant was perfectly entitled to enter) nevertheless deprived him of the discount which otherwise would have been available to him for the entry of a plea of guilty. One must bear in mind that there is a maximum penalty for this offence of twenty years and the applicant can receive no assistance at all from his prior conduct. The fifty per cent allowance for the non-parole period from the head sentence was the maximum which the applicant could reasonably have anticipated. It did demonstrate some acceptance, as I have suggested, by the sentencing judge of the applicant's attempts at rehabilitation albeit with the qualifications which he expressed to which I have made reference. 30 I repeat that the head sentence is towards the top of the range. However I am not satisfied that it is, in the circumstances of this case, one that was beyond the permissible sentencing discretion of the sentencing judge who, after all, heard all the evidence and determined the question of guilt as well as sentence. 31 Bearing in mind the length of the head sentence, I would propose that the application for leave be granted but that the appeal must be dismissed. ********** 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.