New South Wales Court of Criminal Appeal CITATION : Regina v Baleisuva [2004] NSWCCA 344 HEARING DATE(S) : 29/09/04 JUDGMENT DATE : 13 October 2004 JUDGMENT OF : Dunford J at 1; Barr J at 2; Hoeben J at 3 DECISION : Leave to appeal granted, appeal allowed. CATCHWORDS : Failure to identify co-offenders - relevance to contrition and rehabilitation, appropriateness of questions by sentencing judge. LEGISLATION CITED : Crimes Act 1900 Chow v DPP (1992) 28 NSWLR 593 CASES CITED : R v Fajka [2004] NSWCCA 166 R v Simpson (2001) 53 NSWLR 704 PARTIES : Alfred William Baleisuva - Applicant Crown - Respondent FILE NUMBER(S) : CCA 2004/1870 COUNSEL : A P Cook - Applicant Ms J Girdham - Crown SOLICITORS : S O'Connor, Legal Aid Commission - Applicant S Kavanagh, Solicitor for Public Prosecutions - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0700 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1870 DUNFORD J BARR J HOEBEN J Wednesday, 13 October, 2004 REGINA v Alfred BALEISUVA Judgment 1 DUNFORD: I agree with Hoeben J. 2 BARR J: I agree with Hoeben J. 3 HOEBEN J: On 22 July 2003 at the Downing Centre Local Court the applicant pleaded guilty to the following offence for which he was committed for sentence to the Sydney District Court. That on 21 January 2003 at Caringbah in the State of New South Wales did break and enter the commercial building of O'Brien Auto Body Repair Shop situate at 37 Parraweena Road Caringbah and then while in the said shop did steal motor vehicle registration AMX 11C the property of Andrew Maritos and motor vehicle registration AMK 16J the property of Brett Cooper. This offence was contrary to the provisions of s112(1) of the Crimes Act 1900 the maximum penalty for which was imprisonment for 14 years. 4 On 12 December 2003 at the Sydney District Court the applicant adhered to his plea and came before Dodd DCJ for sentence. His Honour sentenced the applicant to a term of imprisonment for 6 years, to date from 12 December 2003 and expire on 11 December 2009. He set a non-parole period of 3 years, to date from 12 December 2003 and to expire on 11 December 2006. Facts 5 The applicant in company with three other persons went in a stolen car to the premises. The front door of the premises was smashed open, locks were broken with bolt-cutters and after the roller-shutter door into the premises had been opened, a cabinet was broken into. His Honour accepted that the applicant did not actually participate in any of those actions at the premises. 6 An alarm was activated as a result of which a security vehicle arrived. Three vehicles were observed to have been moved onto the driveway before the relevant two vehicles were stolen. The arrival of the security vehicle caused the applicant and the other offenders to decamp. The applicant drove one of the stolen vehicles, being a Nissan Skyline AMK 16J. The three vehicles were observed travelling at high speed west along Parraweena Road. 7 Highway patrol police subsequently observed the three vehicles travelling at high speed along Park Road, Kogarah Bay. The highway patrol activated the warning devices on the vehicle and pursued two of the vehicles for a number of kilometres. At some point those two vehicles separated and the police followed the vehicle which the applicant was driving. 8 At the intersection of Halstead and Truman Streets, South Hurstville the vehicle driven by the applicant collided with the other stolen vehicle being that in which the applicant had originally travelled to the premises. The occupants of the vehicles fled from the scene except for the applicant. He was trapped in the driver's seat of the Nissan Skyline. The applicant was placed under arrest and taken to St George Hospital for medical treatment for injuries sustained in the collision. 9 Sledgehammers and bolt-cutters were removed from both of the damaged vehicles. The applicant was wearing gloves when found in the driver's seat. It was common ground that the value of the two vehicles stolen from the premises was in excess of $15,000. 10 The applicant told police that earlier in the evening a mate had telephoned him and asked him to come to a place at Taren Point. The applicant refused to reveal the identity of that caller. The applicant had been picked up by three other mates and driven in the car to the premises at Taren Point. The applicant admitted to assisting in breaking into the premises and admitted driving the Nissan Skyline from the scene. 11 The applicant gave evidence and was cross-examined. The additional evidence thereby adduced can be summarised as follows: (i) The applicant had been keeping a look out while his companions actually broke into the premises. (ii) He saw the tools almost immediately after he got into the car so that he became suspicious that they were going to commit a crime. Nevertheless, he did not ask to be let out of the car. The applicant said that he had a problem saying no. (iii) He had not participated in the theft of the car which had picked him up and taken him to the premises. He realised after about ten minutes or so that this car was stolen. (iv) He was not prepared to reveal the names of his companions. The reason why was that he feared for his life since one of the co-offenders had been in custody and knew a lot of people. Remarks on sentence 12 His Honour noted that the offence was a serious one, it was prevalent and in this case had obviously been planned and organised. The offence was attended by a certain amount of damage at the premises. The applicant and his co-offenders took steps to avoid capture including accelerating away from the police causing them to engage in a pursuit which of itself was a dangerous activity. His Honour characterised the offence as being towards the upper end of the scale for such offences. 13 His Honour had regard to the following subjective matters. (i) The applicant was born on 29 June 1980 and was therefore aged 22 at the time of the offence. (ii) The applicant had a criminal record which included larceny, malicious damage to property in excess of $2,000 and being carried in a conveyance without the consent of the owner. The most serious offence was robbery while armed with a dangerous weapon. In relation to that offence, the applicant had on 1 December 2000 been sentenced to imprisonment for 3 years and 6 months, to commence on 17 June 2000 with a non-parole period of 1 year and 3 months. (iii) The applicant was accordingly subject to conditional liberty and on parole at the time of this offence. The applicant was also on a bond to be of good behaviour for 12 months, commencing on 15 August 2002, as a result of a motor vehicle offence. (iv) The applicant's parents separated when he was 14. Thereafter he had little contact with his father, who was a heavy drinker. He had had a number of short-term unskilled positions in the building industry since leaving school, and in the six months leading up to sentence, had been employed with a painting and decorating company. His employer reported that he was a reliable worker. (v) The applicant had been consistent in denying any participation in the planning of the offence. The applicant's explanation for his participation was that he found it very difficult to resist pressure from his friends and say no. His psychological profile was that of a quiet compliant man who was impressionable. Nevertheless the applicant was aware that what he was doing was wrong. (vi) Rehabilitation had reasonable prospects of success but the applicant would require a close supervision program with assertiveness training so that the applicant could learn to resist pressure from his friends. (vii) The applicant was in a stable and caring relationship with a woman who had no criminal record. (viii) The applicant, his girlfriend and his mother confirmed that he had not had contact with those of his friends who engaged in criminal activity since the offence was committed. 14 His Honour accepted that the applicant had pleaded guilty at the earliest opportunity and was therefore entitled to a discount of 25% for that plea on the basis of its utilitarian value. 15 While his Honour noted that the plea of guilty, and the applicant's evidence generally indicated some degree of contrition, his Honour had some reservations as to how genuinely contrite the applicant was. 16 His Honour based those reservations on the fact that the applicant had refused to identify his co-offenders to the police and maintained that refusal before his Honour. Initially the applicant gave as a reason that he did not wish to give up his friends. It was only at the end of his evidence that he introduced for the first time as a reason for not naming his co-offenders that he was afraid for his life. 17 In addition his Honour at T.16-17 asked a number of questions of the applicant relating to why he would not identify his co-offenders and also putting to the applicant what he would do in a hypothetical situation if he saw a crime being committed and knew the person who was committing the crime. 18 On the basis of the applicant's somewhat hesitant answers to those questions, his Honour made these observations: "I am therefore concerned not only that your evidence displays a lack of contrition but that it also displays a lack of understanding of your obligations as a citizen in supporting law enforcement. To that extent it indicates that you have quite a long way to go in effectively achieving rehabilitation. …" (ROS p8.9 and 9.1) and later: "Thirdly, the submission does not take account of the seriousness of this offence and your role in it, your age at the time of the commission of this offence, that is, that you were not a child, and, as I have concluded, your lack of genuine contrition and your lack of understanding of your obligations as a citizen to which I have already referred, although I do not place great emphasis upon those latter two matters." (ROS p9.9 and 10.1) 19 His Honour's reference to contrition and his reservations in that regard, were made in the context of a submission put on behalf of the applicant that a full-time custodial sentence was not appropriate and that periodic detention should be considered. His Honour's remarks as to contrition were made when rejecting that submission. 20 Because of the objective seriousness of the offence, and the applicant's prior record, his Honour determined that a full-time custodial sentence was required. Nevertheless, he found special circumstances because of the applicant's age, the psychological factors identified by Dr Lennings and the need to maximise the applicant's prospects of rehabilitation. It was for that reason that the non-parole period represented 50% of the head sentence. Appeal 21 On behalf of the applicant, two grounds are relied upon. (i) That the sentence is manifestly excessive and that a lesser sentence is warranted in law; (ii) That the sentencing process was attended by actual error in that his Honour took into account an irrelevant consideration in his assessment of the applicant's degree of contrition and also his prospects for rehabilitation. 22 In support of the first ground it is submitted that the applicant's account of his involvement in the offence is unchallenged, that he became aware of the criminal enterprise late and that he did not actually enter the premises by breaking in. Reliance is placed upon a decision of this Court in R v Fajka [2004] NSWCCA 166. 23 In support of the second ground, it is submitted that the applicant has consistently expressed his remorse and contrition and has exhibited a high degree of commitment towards rehabilitating himself. It was not open to his Honour to have regard to the applicant's failure to identify his co-offenders as impacting upon either the genuineness of his contrition or attempts at rehabilitation. In addition, the questions relating to the hypothetical circumstances were unfair. As a general criticism of his Honour's approach it is submitted that his Honour took on a role more akin to that of a prosecutor than that appropriate to a judicial officer. Reliance is placed on the remarks of Kirby P in Chow v DPP (1992) 28 NSWLR 593 at 606. Decision 24 In relation to the first ground of appeal, I do not see that the decision of this Court in R v Fajka is relevant to these proceedings. That was a case where the sentencing judge in effect made the offender in part responsible for much that a co-offender said or did during the commission of the offence simply because he happened to be in his presence. The offence there being considered being one of affray in licensed premises. 25 The situation here is quite otherwise. The applicant knew within approximately ten minutes that his companions were in a stolen car and were intending to engage in a criminal act as a result of the tools which he observed in the car. Thereafter he did not make any attempt to either leave the vehicle or to dissuade his companions from that conduct. Although there is no evidence that he engaged in the physical activity of breaking and entering, he kept watch whilst that activity was taking place. He drove away at high speed in one of the stolen vehicles and persisted in trying to avoid apprehension when he knew he was being pursued by the police. The fact that he was wearing gloves in January, a matter to which his Honour specifically referred when reviewing the facts, places some doubt on his version of passive involvement only. 26 The objective seriousness of the offence (maximum sentence 14 years), its prevalence and the aggravating features surrounding it – a high speed attempt to escape and the value of goods in excess of $15,000 - required his Honour to have regard to not only personal deterrence, but also general deterrence. In that regard a full time custodial sentence was inevitable. 27 His Honour was also entitled to have regard to the serious nature of the applicant's prior criminal record, the fact that he had already served a period of full-time custodial confinement and that he was on parole and on a bond at the time of the offence. 28 In relation to the second ground of appeal, I agree with the submission that the "hypothetical criminal scenario" put by his Honour to the applicant involved an element of unfairness. Not only was the proposition unduly imprecise, but whatever answer the applicant gave was going to get him into trouble. His Honour's use of the answers which he received in relation to that "hypothetical criminal scenario" clearly involved error. 29 In relation to the applicant's failure to identify his co-offenders to the police and to the court during the sentencing hearing, I agree that this ought not be taken into account as an aggravating feature or as something which should lead to an adverse finding against the applicant. This is particularly so when the questions were put to the applicant in open court in a situation where a full-time custodial sentence was inevitable. 30 The applicant's failure to identify his co-offenders to the police was relevant to the issue of contrition and rehabilitation in that an important part of the applicant's case on those issues was the cessation of contact with his previous "bad companions" who had led him astray. The fact that he was unwilling to reveal the identity of those persons to the police and may still have regarded them as his friends was relevant to that question. His failure to identify those persons in open court in answer to direct questioning by his Honour involves quite different considerations. In my opinion his Honour erred in taking into account adversely to the applicant on the issues of contrition and rehabilitation the applicant's refusal to name his co-offenders when asked to do so by his Honour in court. 31 Error has occurred in his Honour's approach to rehabilitation and contrition in the way referred to. Is the error of such a kind as to entitle this Court to intervene in the sentencing process? In that regard the comments of Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 at para 79 remain apposite: "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: "If it is of the opinion that error has occurred in the sentencing process". That is not the statutory formulation. By section 6(3) this Court must form a positive opinion that "some other sentence … is warranted in law and should have been passed." Unless such an opinion is formed, the essential pre-condition for the exercise of the power to "quash the sentence and pass such other sentence in substitution therefor" is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in section 6(3) further requires the identification of error in the requisite sense." 32 Although his Honour said that he placed little emphasis on the two matters in which error occurred, it is clear that these matters influenced his Honour's approach to the whole sentencing process in particular to contrition and rehabilitation. They took up a significant part of his Honour's remarks on sentence. In those circumstances I am of the opinion that some other sentence is warranted in law and should have been passed. 33 His Honour took as his start point a sentence of 8 years which was reduced to 6 years after the deduction for the applicant's early plea of guilty. I would use as my start point a sentence of 6 years and 9 months. 34 Once that point is reached no criticism can be made of his Honour's approach in applying a 25% discount for the early plea of guilty and in finding special circumstances thereby fixing a non-parole period which was 50% of the head sentence. This is particularly so when one has regard to the applicant's prospects of rehabilitation in the light of the up to date material tendered on this application to his contrition and to his age. 35 Following that approach and allowing 25% deduction for the early plea of guilty, I would impose a sentence of 5 years imprisonment but would fix a non-parole period of 2 years and 6 months. 36 Accordingly, the orders which I propose are as follows: 1. Grant leave to appeal and allow appeal. 2. The sentence imposed by Dodd DCJ on 12 December 2003 is quashed. 3. The applicant is sentenced to a period of imprisonment for 5 years to date from 12 December 2003 and expire on 11 December 2008 with a non-parole period of 2 years and 6 months to expire on 11 June 2006. The applicant is eligible to be considered for release on parole at the expiration of the non-parole period. ********** Last Modified: 10/15/2004 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.