New South Wales Court of Criminal Appeal CITATION : Regina v Challis [2003] NSWCCA 48 HEARING DATE(S) : 24/02/03 JUDGMENT DATE : 26 February 2003 JUDGMENT OF : O'Keefe J at 1; Bell J at 23 DECISION : Leave to appeal refused. CATCHWORDS : Criminal law - Appeal - Severity - Break and enter offices - Possession of house breaking implements - Multiple offences - Offences committed whilst on parole and on suspended sentences - Aggravating factors - Non acceptance of previous opportunities for rehabilitation - Special circumstances a question of fact - Onus of proof - Statistics relate to highest sentence imposed, not to accumulated sentences - Basis for comparison of sentences LEGISLATION CITED : Crimes Act 1900; ss 112(1), Crimes (Sentencing Procedure) Act 1999; s 32 Childs v Kelly (1948) 65 WN (NSW) 141 Freeman v Stankovic (1960) 77 WN 631 O'Hare v DPP (NSWSC 430, unreported, 22 May 2000) CASES CITED : Re Attorney General's Application [No. 1]: Regina v Ponfield (1999) 48 NSWLR 327 Regina v Harris (NSWSC, unreported, 18 April 2000 Veen (No. 2) v The Queen (1988) 164 CLR 465 Williams v Hansen (1957) SR (NSW) 428 PARTIES : Regina Michael David Challis FILE NUMBER(S) : CCA 60138/02 COUNSEL : Mr P Winch - Applicant Mr R A Hulme SC - Crown SOLICITORS : Mr D J Humphreys - Applicant Ms S E O'Connor - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0355 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : - 10 - IN THE COURT OF CRIMINAL APPEAL 60138/02 O'Keefe J Bell J 26 February 2003 Regina v Challis Judgment O'KEEFE J: Introduction 1 On 11 March 2002, Michael David Challis (the Applicant) admitted in the District Court to having committed 13 offences contrary to s 112(1) of the Crimes Act 1900; two of such offences having been committed on 13 October 1999; eleven on 20 May 2001. Five of the offences were charged in two indictments, and eight were included on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. The Applicant was born on 18 May 1976, so he was aged 23 at the time of the commission of the offences of 13 October 1999; 25 at the time of the offences of 20 May 2001; approaching 26 at the time of sentence. The Applicant was sentenced to various terms of imprisonment which, with accumulations, in effect involved his imprisonment for a total term of 6 years, with a non-parole period of 4 ½ years. 2 On 14 May 1999 the Applicant was sentenced for breaking, entering and stealing to a term of imprisonment of 9 months, together with an additional term of 9 months, which additional term did not expire until January 2001. Thus, the additional term which he was liable to serve was in force at the date of the commission of the offences of 13 October 1999. In addition, the Applicant was sentenced in the District Court in connection with the theft of a motor vehicle in which he was a passenger, and an offence of being an accessory after the fact of breaking, entering and stealing. The sentence imposed in respect of these offences was a term of imprisonment for 12 months, commencing on the date on which he was sentenced, namely 26 May 2000. This sentence was suspended on his entering into a bond to be of good behaviour. As a consequence, the bond was still in effect at the date of the offences committed at Parramatta on 20 May 2001. Furthermore, on 18 November 1999 he was sentenced in Queensland to 1 month's imprisonment. However this sentence was suspended for two years, and he was thus the subject of this suspended sentence as at the time of the commission of the second series of offences on 20 May 2001. Facts 3 A Statement of Facts was tendered at the sentence hearing. It revealed that in the early hours of the morning of 13 October 1999, staff at a bakery at North Turramurra went to investigate the sounding of an alarm at a nearby liquor store. They saw a group of three or four males exiting the premises and running away. The employees of the bakery gave chase. During the course of the chase, one of the males who was running away fell over and lost his jacket. This proved to be the property of the Applicant. A mobile telephone was also found and given to police. Shortly after this had occurred, the phone rang and the male caller enquired whether the person answering the phone was "Michael" (the Applicant). When the caller discovered that the person answering the phone was not the Applicant, he hung up, but not before he had directed some un-pleasantries to the police officer in question. 4 On 10 March 2000 the Applicant was spoken to by police about the two offences of break, enter and steal committed on 13 October 1999 – one at the North Turramurra Delicatessen and one at Porters' Liquor Store at North Turramurra. As was his entitlement, the Applicant declined to answer any questions and thus afforded no assistance to the authorities. 5 In the early hours of the morning of 20 May 2001, police who were patrolling the Parramatta Central Business District in an unmarked police car saw two males near premises at 20 Charles Street, Parramatta. One, the Applicant, was wearing a red jacket, grey pants and running shoes, and was carrying a bulky white plastic bag. The other male was dressed in dark clothes and was carrying a lap-top computer case and a plastic shopping bag. After the Applicant and his companion had looked into the unmarked police car, they ran away. However the Applicant's companion was later found hiding in the vicinity and was apprehended. 6 As a result of information given and a search undertaken, police found the Applicant lying on his side hiding in a nearby garden bed. He too was apprehended. He was searched and found to have an amount of money, both in notes and coins, a number of keys, several mobile phones and other items, including housebreaking implements, in his possession. As was his entitlement, the Applicant once again declined to make any statement to the police. 7 Further enquiries revealed that the following offices at 20 Charles Street, Parramatta had been broken into over the weekend that included Sunday 20 May 2001: (i) Whanau 2000 (ii) Daewoo Heavy Industries (iii) Presidium Recruitment (iv) Mediologics (v) Freemans Australia (vi) Supreme Executive (vii) Cater Care Australia (viii) W R Harvey & Associates (ix) Workplace Consulting (x) Aluminium Construction and Supplies 8 As can be seen from the foregoing, each of the offences, other than that of possession of housebreaking implements, involved entering office premises with intent to steal, and in some cases actual stealing from them. The items stolen were either money or equipment such as a lap top computer and mobile telephones. In a number of instances, the premises were ransacked, and damage was done to them or their contents. The Grounds of the Application 9 The Applicant has sought leave to appeal in respect of the sentences imposed on him. In the written submissions filed in support of the application, four grounds of challenge were advanced, namely that: (i) the sentence is manifestly excessive; (ii) imposing a total sentence near the top of the available range involved error; (iii) undue weight was placed on the aggravating circumstances; (iv) insufficient weight was given to the Applicant's efforts to rehabilitate, and to his subjective case. 10 In the oral argument, these grounds were supported by three arguments: (i) what was said to be an error on the part of the Judge in his statement under the heading "The Offender's Rehabilitation" that "he (the Applicant) has refused them" – ie, chances for rehabilitation (italics added); (ii) the fact that the Judge did not find special circumstances highlighted his failure to deal adequately with the subjective circumstances of the Applicant's case; (iii) the total sentence, when viewed against the statistics produced by the Judicial Commission, was at the higher limits, whereas the offences admitted to by the Applicant did not warrant such a characterisation or penalty. As to (i) 11 In his Remarks on Sentence, the Judge dealt specifically with a whole range of subjective matters relevant to the Applicant, for example: his age; background; upbringing; minimal education and functional illiteracy; rare episodes of employment; absence of any physical, emotional or psychological problem; relationship with his girlfriend; occasional use of alcohol; that he was not a drug user; that he had overcome a gambling habit. In the course of analysing these, and other factors relative to the subjective situation of and relating to the Applicant, the Judge considered the Applicant's prospects of rehabilitation. He said: "17. The offender's rehabilitation . Frankly, I doubt that the offender will cease criminal activity. I suspect that, if he wanted something that he could not afford to buy, he would steal it, or the money to buy it. He has been given chances of rehabilitation in the past, and he has refused them." (Italics added) It is as a result of the use of the word "refused" that challenge is made to the sentences imposed, it being asserted that its use involves error. 12 In the context in which it appears in the above passage, it is reasonably clear that the word "refused" is used in the sense of acting in such a way as to indicate or show that one is not willing to do something (New Oxford Dictionary of English, 1998 ed. p 1561); to indicate an unwillingness to accept something offered (Macquarie Dictionary, 3rd ed. 1997 p 1792). 13 So understood, there is no error in the statement made by his Honour. The criminal history and recidivism of the Applicant provide ample basis for dubiety in relation to the prospects of the Applicant ceasing criminal activity. Not only does he not appear to have worked during much of his adult life, but the nature of the offences for which he has been repeatedly convicted suggests that he has chosen criminality as his way of life. Furthermore, the series of offences committed on 20 May 2001, combined with the circumstances of those committed on 13 October 1999, and the fact that all the offences were committed when he was subject to suspended sentences, bonds, additional terms or the like, give a further basis for the doubts expressed by the Judge. The excuse for committing the offences that was given by the Applicant to the Probation and Parole Service Officer – namely that he needed money "to provide for various baby equipment such as a cot, pram, etc" – amply supports the Judge's conclusion that if the Applicant wanted something he could not afford, he would steal it or the money to buy it. 14 The various control orders, releases subject to supervision, suspended sentences and the like in his record indicate that he has been given many opportunities in the past to reform his ways. His repeated offences notwithstanding these proffered opportunities to rehabilitate himself, fully justify the conclusion by the Judge that, by his behaviour, the Applicant has indicated his disinclination or unwillingness to take advantage of such opportunities. 15 In my opinion, no error is disclosed in the passage the subject of challenge. The first argument in support of the application fails. As to (ii) 16 What constitutes special circumstances is a question of fact (Freeman v Stankovic (1960) 77 WN 631). In considering the meaning of the phrase, the courts of this State have consistently "and strenuously resisted… any attempts to obtain a definition of what constitutes special circumstances" (Williams v Hansen (1957) SR (NSW) 428 and 431 per Street CJ; Childs v Kelly (1948) 65 WN (NSW) 141 per Owen J; Freeman v Stankovic (supra at 632); Regina v Harris (NSWSC, unreported, 18 April 2000); O'Hare v DPP [2000] NSWSC 430, unreported, 22 May 2000)). What may constitute special circumstances extends over a wide spectrum. However a finding of special circumstances involves the tribunal of fact being satisfied as to the existence of relevant circumstances that are special to the particular case, in the sense that such concept is to be understood in the light of the authorities; furthermore, who asserts must establish. The Judge stated the legal basis on which circumstances may be considered as special. In doing so, he did not fall into any error of law. Moreover, there is nothing in the evidence that would compel a finding of special circumstances in the instant case. His conclusion is therefore unexceptional. Indeed, looking at the case overall, I am of opinion that the Judge's conclusion that he should not to find special circumstances was correct. The second argument fails. As to (iii) 17 Counsel for the Applicant compared the effect of the cumulative head sentences of six years with those in the statistics produced by the Judicial Commission. From this he argued that the effective six years head sentence imposed on the Applicant put it in the top 10% of sentences for an offence of break, enter and steal. He advanced a like argument, albeit based on different figures, in respect of the non-parole period that had been fixed. Two things should be said about this argument. The first is the need for caution in the use of the statistics. The circumstances that are involved in the individual cases included in the statistics are not known. The second, and in the instant case more important, is that the statistics relate to the highest sentence imposed for such an offence, even where such offence is dealt with in combination with other offences of a like kind. They do not take account of accumulations. Therefore, in the instant case, it is not the cumulative total of six years that needs to be compared with the published statistics, but the highest sentence for an individual offence, namely four years, which needs to be so compared. When the correct comparison is made, the highest sentence imposed on the Applicant is in the top 42% of sentences, not the top 10%. Such comparison thus marks the sentence imposed as one which is appropriate to a serious break, enter and steal offence – ie, as bespeaking a penalty more severe than an ordinary break, enter and steal offence may call for. 18 In the guideline judgment of Re Attorney General's Application [No. 1]: Regina v Ponfield (1999) 48 NSWLR 327, Grove J (with whom Spigelman CJ and Sully J agreed) said in respect of offences of breaking, entering and stealing from, inter alia, any office: "A court should regard the seriousness of an offence contrary to s 112(1) of the Crimes Act as enhanced, and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present, there is a cumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty, on bail or on parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record, particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism, or by any other significant damage to property. (vi) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the Criminal Procedure Act) …" With the exception of (iv) above, each of the factors which have a cumulative effect on the seriousness of the offences has application in the instant case. 19 In addition, it should be borne in mind that in Veen (No. 2) v The Queen (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said that: "… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence … the antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration, or whether the offender has manifest in his commission of the instant offence, a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity, or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." (supra at 477) 20 In reaching his conclusion as to the penalties to be imposed, the Judge described the objective seriousness of the Applicant's offences in the following way: "The offences, particularly the series of them committed on 20 May 2001, are serious offences. The Court of Criminal Appeal in its judgment of Ponfield reminded sentencing judges of the seriousness of the offence of breaking, entering and stealing. However, these offences are not the worst type of breaking, entering and stealing offences." Had the offences been of the worst type of breaking, entering and stealing, a higher head sentence may well have been imposed, particularly having regard to the facts that they were committed whilst the Applicant was the subject of suspended sentences and the like, that the Applicant had a bad record for like offences, that the case involved a multiplicity of offences reflected both in the charges and in the matters taken into account on the Form 1 which was before the Court, and that their commission was indicative of planned criminal conduct. 21 Having regard to the circumstances in which they were committed, the number of offences involved, the criminal history of the Applicant and the principles referred to in paragraphs 18 and 19 above, I am of opinion that no error is disclosed in the sentences imposed when reference is had to the statistics. When regard is had to them and to the other factors to which I have adverted, I do not think that it can fairly be said that the sentences imposed on the Applicant were manifestly excessive, notwithstanding the subjective factors relating to the Applicant, all of which were adequately considered by the Judge. Furthermore there is, in my opinion, nothing in His Honour's Remarks on Sentence that would sustain the challenge to the sentences on the basis that undue weight was placed on the aggravating circumstances. 22 For the foregoing reasons I would propose that leave to appeal should be refused. 23 BELL J: I agree. Formal orders 24 Leave to appeal refused. ********** Last Modified: 03/04/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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