R v BLAKE [2003] NSWCCA 113

New South Wales Court of Criminal Appeal

CITATION : R v BLAKE [2003] NSWCCA 113 HEARING DATE(S) : 28 April 2003 JUDGMENT DATE : 28 April 2003

JUDGMENT OF : Hulme J at 1; Simpson J at 29 DECISION : Leave to appeal granted; appeal dismissed

PARTIES : Regina Edward Richard Rex BLAKE FILE NUMBER(S) : CCA 60015 of 2003 COUNSEL : Crown: MC Grogan Appellant: AC Haesler SOLICITORS : Crown: SE O'Connor Appellant: DJ Humphreys

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0657 FILE NUMBER(S) : LOWER COURT Twigg DCJ JUDICIAL OFFICER :

- 1 - IN THE COURT OF CRIMINAL APPEAL No: 60015/03

HULME J SIMPSON J

Monday 28 April 2003 R v Edward Richard BLAKE Judgment 1 HULME J: On 10 October 2002 the abovenamed Applicant for leave to appeal was sentenced by Judge Twigg in respect of three charges to which he had pleaded guilty. The first charge was that on 7 January 2002 he did break and enter premises with intent – an offence which under section 113(1) of the Crimes Act carries a maximum penalty of ten years imprisonment. 2 The second charge was that on 7 January he did break and enter and steal a quantity of phone cards, cigarettes and cigars – an offence which under section 112(1) of the Crimes Act carries a maximum penalty of fourteen years imprisonment. 3 The third charge was that on or about 5 February 2002 he received a quantity of computer equipment – an offence which under section 188 of the Crimes Act carries a maximum penalty of ten years imprisonment. 4 In respect of the first count the Applicant was sentenced to a fixed term of imprisonment of 3 years from 10 October 2002. In respect of the second count he was sentenced a term of imprisonment for 4½ years including a non-parole period of 3 years, both periods also commencing on 10 October 2002. In respect of the third count he was sentenced to a fixed term of imprisonment for 12 months also dating from 10 October 2002. 5 The Applicant had been in prison in the past. In an ERISP he said that he was contacted and told there would be some money in it for him if he opened a placed up. He and two other persons went to an abandoned hairdresser's premises where the Applicant using a tool he had acquired as an incident of some earlier employment levered the door or door frame which gave way. The Applicant then retired and sat in a car nearby acting as a lookout. The two persons with him then entered the hairdressers shop and broke into an adjoining tobacconists stealing items from those premises. For his assistance, the Applicant was given 10 cartons of cigarettes, some phone cards and an amount of $1,500. His breaking into the hairdresser's shop was the subject of the first count and his acting as lookout for the offence against the tobacconists' shop was the offence of the second count. He said he knew what the others were doing when they were breaking into the tobacconists he knew it was wrong but stayed as part of the operation. 6 In his ERISP the Applicant explained his involvement in the third offence as follows. He kept contact with a number of people he had done time with. He said to one of them "if you're still playing the game and if you come across, like, any computer stuff, give me a call". Sometime later he came across that person who told the Applicant that within a couple of days he would be giving the Applicant a call and the Applicant should have his phone on. The Applicant responded "yes, not a problem." 7 In due course the phone call eventuated and the Applicant in a vehicle attended adjacent to a computer store where a quantity of computer equipment was loaded into the vehicle. Most of the equipment was delivered to some other premises but the Applicant who had said he had wanted something out of it was told to take his pick. He kept some property for himself including a monitor, a CPU and a box of CD writers. 8 A search warrant was executed at the premises of the Applicant's de-facto on 2 March 2002 where some of the above items were discovered. Shortly afterwards the Applicant handed himself into police and participated in the ERISP. He made admissions in relation to the three offences. He pleaded guilty at the committal proceedings. At the District Court he was reindicted because of a slight variation in the charges. Judge Twigg regarded the Applicant as having pleaded at the earliest opportunity and observed that he took that fact into account for its utilitarian value and as a demonstration of remorse. His Honour allowed a discount of 25% from the sentence he would have otherwise imposed on the second count for this. 9 The Applicant was born in New Zealand in October 1973. His antecedents commenced in May 1992 when he was convicted of possession of a prohibited drug and stealing from a dwelling. Over the ensuing few years he was convicted of numerous other offences of dishonesty being sentenced in January 1994 to imprisonment for a minimum term of 12 months and an additional term of 4 months for breaking, entering and stealing. 10 In 1996 he received further sentences of imprisonment including four offences of receiving and possession of housebreaking implements. A charge of breaking and entering with intent was taken into account and the Applicant was sentenced for harbouring a felon to imprisonment for a minimum term of 9 months from 3 July 1996 with an additional term of 15 months. In August 2001 he was again convicted, this time for possession of implements to enter or drive a conveyance. 11 The Applicant's mother died when he was about 12. The applicant and his father, who seems to have had a major gambling problem did not get on. The Applicant stayed at school until the conclusion of his intermediate grades. Shortly afterwards he came to Australia, stayed with his sister for some 6 months and then lived on the streets becoming involved in drinking and the use of some drugs. According to evidence the Applicant gave before Judge Twigg, he first used heroin while in jail in 1994 then becoming an addict. According to him, he overcame this addiction when he returned to jail in 1996 and has not touched heroin since. After his 1997 release he obtained full time employment firstly with a stone mason and then cement rendering. His employer in the latter occupation, provided a reference indicating that the Applicant was hard working, consistent in a team environment and willing to assist his fellow workers whether supervised or unsupervised. The Applicant's full time employment seems to have continued until his arrest after which bail conditions precluded its continuation. The Applicant obtained some casual work thereafter but would not seem to have done anywhere near as much in that regard as he could have. 12 The Applicant also has a serious gambling addiction. There was some evidence that he acquired this when he was 10 and was heavily in debt by the time he was 16 although the Applicant's own evidence suggests it arose only after he was released from jail in April 1997. Prior to the proceedings before Judge Twigg the Applicant did almost nothing by way of addressing this problem, attending on one occasion at Gamblers Anonymous and 2 days before sentence attending another counselling organisation in that regard. 13 On behalf of the Applicant it was submitted that the sentences imposed were manifestly excessive particularly when had regard to the Applicant's co-operation with police, his plea of guilty, his demonstrated remorse and willingness to accept responsibility and the fact he had taken steps towards rehabilitation. Reliance was also placed on the gap which was said to exist between the Applicant's previous history of offending and the current offences. It was also drawn to this Court's attention that before Judge Twigg the Crown Prosecutor had accepted that "in this Court a break, enter and steal offence of this nature, given that the value of the goods was approximately just under $15,000 this would be at the lower end of the scale". I should add that $15,000 or thereabouts seems to have been the value attributed to the goods stolen from the tobacconists' shop and a further $15,000 attributed to the goods the subject of the offence involving the computer store. 14 The second ground upon which the sentences imposed were attacked was some remarks his Honour made as to the applicant's role. It was submitted that while any involvement certainly rendered the applicant liable to the imprisonment prescribed by Parliament his Honour seems not to have have recognised that a lesser role merited lesser punishment than would have been appropriate was the applicant's role greater. 15 What his Honour said in this latter regard was as follows: "These all were joint criminal enterprises. It misses the pint to suggest that the offender was not the organiser. The ill logic of that proposition jumps out of the sentence. It suggests that three people who organise to rob a bank and one does more of the talking or perhaps organising is more to be blamed than those who cooperate to the full and share in the proceeds." 16 There is no doubt that as a general proposition the respective roles of parties involved in a joint offence is a relevant consideration. But it does not follow that those whose roles are lesser are entitled to a lesser penalty than those whose roles take a more substantial form. Much will depend on the extent of the disparity in role. 17 While it may be accepted that it seems that the applicant was not the principal organiser or brains behind the idea to rob the tobacconists' store, the extent of his actions in breaking into the hairdresser's store, a task for which he was apparently chosen by those whose idea it was, places him in relation to that offence at least on a par with the other offenders. 18 When one comes to consider the second offence, the breaking into the tobacconists' store, certainly his role was of a somewhat lesser nature than those who had planned the operation and who actually effected the stealing within that store. 19 If the proper conclusion is that his Honour thought all three offenders were of equal blame worthiness, then it would seem to me that his Honour did err in that regard. Nevertheless, the applicant's role in acting as look out was a substantial one. His participation was much more than on the fringe. Before proceeding further with that ground, I shall then go to consider the second which was urged, namely that the sentence was manifestly excessive. 20 I have recorded the penalties which the legislature has prescribed as the maximum for the offences of which the applicant was guilty. The sentences imposed on him were very substantially less than those maxima, a fortiori when the effective sentence imposed is compared with the totality of those to which his actions made him liable. 21 Of course, I do not suggest that any of his offences came close to a worst case. But they were nevertheless serious breaches of the provisions which rendered his actions criminal. I have also referred to his record, a most regrettable one of persistent dishonesty extending albeit with one break of something of the order of four years from 1992 until the commission of the subject offences. 22 In the course of dealing with him for his prior offences, the Courts have imposed fines, recognisances and shortish periods of imprisonment. None seem to have taught the applicant an adequate lesson, as witnessed not only by his commission of these offences but his invitation to those who were involved in the computer store incident to give him a call if they were still in the game and had some computer equipment available. 23 Among the functions of punishment is deterrence both of others who might be tempted to offend also of persons who are in the applicant's situation. It is impossible to conclude that someone who has offended with the frequency with which the applicant has is not a recidivist and is not someone from whom the community merits protection. 24 I do not for one moment suggest that the applicant should be kept in gaol longer than would otherwise be appropriate just through the need to protect the community. But when the suggestion is made as it was in this appeal that the applicant should be treated with leniency it is proper to have regard to the leniency or rather absence of it with which he has treated the community. 25 Nor do I suggest that he is to be again punished for offences in the past. It is merely a case of looking at them in making a judgment of what in accordance with the appropriate principles of sentencing should be done with the applicant at this stage. 26 In my view, not only was the sentence which was imposed not manifestly excessive, but for someone with his history it seems to me that no lower penalty should have been imposed. Thus, even if Judge Twigg was in error in the approach he took to the topic of the applicant's role, having regard to the terms of section 6 of the Criminal Appeal Act I would propose that although the application for leave to appeal should be granted, the appeal should be dismissed. 27 I would add only this, if it is the view of the prosecutor who appeared before Judge Twigg that a break, enter and steal offence involving just under $15,000 worth of goods is at the lower end of the scale, she needs a deal of re-education. It is utterly wrong to think that that sort of imposition in the community should be described as "the lower end of the scale." It merits substantial punishment. 28 As I have said, I would grant leave to appeal but dismiss the appeal. 29 SIMPSON J: I agree with the orders proposed and generally with the reasons that have been given. 30 The one matter that has given me pause is examination of the applicant's criminal record which shows that he has had in recent times periods when he has been able to remain out of trouble or out of serious trouble in any event. The last time he was sentenced to a term of imprisonment was in 1996 when he was sentenced to six months. 31 However, it seems to me that these offences were serious not least because they have something of a professional air about them. And I agree with the remarks of the presiding judge concerning the value of the property stolen. 32 In my opinion these sentences were relatively severe but they were not outside the available range nor anywhere near going outside the available range. 33 For those reasons I agree with the orders proposed. 34 HULME J: The order of the Court is that the application for leave to appeal is granted but the appeal is dismissed.