New South Wales Court of Criminal Appeal CITATION : Regina v Dodd [2004] NSWCCA 374 HEARING DATE(S) : 19/10/04 JUDGMENT DATE : 2 November 2004 JUDGMENT OF : Barr J at 1; Buddin J at 2; M W Campbell AJ at 3 DECISION : 1. Leave to appeal granted; 2. Appeal allowed; 3. Quash the sentence and in lieu thereof the applicant be sentenced to a term of imprisonment which is to consist of a non-parole period of thirty months and a total term of five years, each to date from 31 March 2003, with the non-parole period expiring on 30 Setpember 2005; 4. Specify 1 October 2005 as the earliest date on which the applicant will be eligible for release on parole. CATCHWORDS : Criminal Law - sentencing - enter dwelling house in circumstances of aggravation - good prospects of rehabilitation. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 ss21A,54B R v Way (2004) NSWCCA 131 CASES CITED : R v Davies [2004] NSWCCA 319 R v Thomson and Haulton (2000) 49 NSWLR 338 R v Wickham [2004] NSWCCA 193 PARTIES : Regina Alan William DODD FILE NUMBER(S) : CCA 04/2328 H L Cox (Applicant) COUNSEL : P Dwyer - Applicant (Sydney Regional ABoriginal Corp Legal Service) SOLICITORS : S Kavanagh - Respondent (DPP) LOWER COURT District Court JURISDICTION : LOWER COURT 03/61/0143 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 04/2328 BARR J BUDDIN J M W CAMPBELL AJ Tuesday 2 November 2004 REGINA v Alan William DODD Judgment 1 BARR J: I agree with Campbell AJ. 2 BUDDIN J: I agree with Campbell AJ. 3 M W CAMPBELL AJ: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court in respect of an offence to which he entered a plea of guilty upon arraignment. 4 The offence to which the applicant pleaded guilty was an allegation that he did in circumstances of aggravation break and enter a dwelling house and did commit a serious indictable offence therein, namely, did steal a bum bag, a black purse, credit cards, personal papers and four thousand five hundred dollars and that at the time of the said offence he knew that there was a person in the dwelling house. 5 A sentence of eight years imprisonment with a non-parole period of five years was imposed. Both terms were ordered to commence on 31 March 2003 with the non-parole period fixed to expire on 30 March 2008. 6 The maximum penalty prescribed for the offence is twenty years imprisonment. 7 The sentencing judge, noting that the offence was committed on 29 March 2003, considered that it prima facie attracted the standard non-parole period of five years imprisonment provided for by Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999. 8 Subsequent to her Honour's decision the Court of Criminal Appeal in Regina v Way (2004) NSWCCA 131 determined that the standard non-parole period applied where the offender was convicted "after trial." 9 Consequentially, the Crown conceded that there had been an error in the sentencing process and the matter proceeded upon the basis that re-sentencing would be appropriate. It is unnecessary to consider other ground of appeal. 10 It is to be noted that, in the case of a plea of guilty, the standard non-parole period specified in s54 B (five years) still takes its place as a reference point. It performs that function in so far as it specifies the standard non-parole period for a midrange case determined after trial, before any necessary adjustment which might be made in accordance with the section (R v Davies [2004] NSWCCA 319 per Wood CJ at CL at 2). 11 The applicant's submissions provide a convenient summary of the facts of the offence and what followed: "At approximately 10.30 pm on 29 March 2003 a burglary occurred at premises at14 Zoccoli St Coonamble. One of the occupants, Mrs Walden, was asleep in the house at the time. She was woken by the barking of her dog and discovered that the premises had been entered through a window by way of removal of the insect screen. A search of the premises revealed that her bum bag and its contents had been taken. The contents of the bum bag included a black purse, credit cards, personal papers and $4,500.00. The bum bag, black purse, credit cards and personal papers were recovered later. Police investigating the matter initially interviewed the applicant's brothers. The applicant came forward and volunteered his guilt to the investigating police. Whilst some of the property was recovered, the money was not. The applicant had disposed of the money. Goods purchased with part of the money were recovered and a forfeiture order was made by her Honour with respect to those items." 12 It is convenient to add that it would appear clearly enough that the offence was unplanned. The applicant was passing the house and, as he said to police, he "sort of run into it so just got, got the guts, and I ended up doin' it then". It is also appropriate to note that Mrs Walden was 74 years old at the time, although there is no basis for concluding that the applicant was then aware of that fact. 13 I do not need to detail the events after the offence which led to the applicant's admissions, arrest and early plea. The sentencing judge considered a discount of 25 percent appropriate for the utilitarian value of the plea and the remorse that was shown by the plea and otherwise. I respectfully agree with that figure, which is at the top of the range. R v Thomson and Haulton (2000) 49 NSWLR 338. 14 Addressing the seriousness of the offence Ms Cox of Counsel, who appeared for the applicant, made the following submission: "….the offence falls toward the lower end of the spectrum in that it was spontaneous, unplanned, the period of incursion in the victim's home was brief, the home was not ransacked nor were many items of personal importance removed; it was an opportunistic grabbing of what was available and, unfortunately for the victim, it included a large sum of money. The 'home invasion' element was absent given that the victim was asleep." 15 On the other hand the Crown, in written submissions, pointed out that whilst the elderly victim did not awake whilst the applicant was in the house she awoke shortly afterwards to discover what had happened. Attention was drawn to the sentencing judge's observation that to wake in the night to discover that her home had been violated and a significant sum of money taken would have been an extremely distressing experience for her. The sum of money involved would clearly have been a significant one to Mrs Walden. 16 The sentencing judge took the view that the offence did fall within the mid-range of objective seriousness. Dealing with a matter of re-sentencing I am of the view that it falls somewhat below that range bearing in mind, amongst other things, that the presence of Mrs Walden was an element of the circumstances of aggravation. 17 The applicant, who is an Aboriginal, was eighteen years old at the time of the offence and nineteen years old at the time of sentencing. He had had a deprived childhood with the relationship between his parents marred by violence and alcohol. On the other hand he had a close relationship with his mother. Her capacity to control and assist him was, however, doubted by the sentencing judge for good reason. 18 The sentencing judge summarised the applicant's criminal record as follows: "He has lengthy criminal antecedents. There is a discrepancy between his bail report and fingerprint record. That appears to me to have come about because a number of offences were committed when he was fifteen years or younger. Be that as it may he has clearly committed similar offences and at the time he committed this offence, he was serving two s 9 bonds which had been entered some twenty-five days before the commission of this offence, although for offences of a different kind. He has spent time in juvenile detention for goods in custody, and break and enter with intent. He has been the subject of supervised probation for stealing from a dwelling, entering enclosed lands, aggravated entering a dwelling house with intention, break, enter and steal." 19 In terms of the aggravating factors referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999, which I have taken into account, the fact that the offence was committed whilst the applicant was on conditional liberty in relation to offences, albeit not of the same kind, is of considerable significance. 20 A question arose as to the use that might be made of the applicant's convictions as aggravating factors pursuant to s 21A(2)(d) which states, as such a factor, "the offender has a record of previous convictions". 21 As to this question I adopt the comment of Howie J in R v Wickham [2004] NSWCCA 193 where he said at 5: "On its face that provision would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. Yet the common law rule is that a prior record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community: R v Shankley [2003] NSWCCA 253 at [31]. It has been held that s 21A(2)(d) should be read according to that common law principle: R v Johnson [2004] NSWCCA 76." 22 I do not consider that the applicant's record is one that should have effect upon the sentence in the present matter other than that he is deprived of the mitigating factors of an absence of convictions and good character. 23 A Juvenile Justice report of 18 May 2001 reported that the applicant's behaviour whilst at the Orana Juvenile Justice Centre had been "extremely good". 24 A report from the Ted Noffs Foundation showed that the applicant successfully completed a three months residential program at PALM Dubbo. Amongst other things is said: "Allan showed a commitment to the program and to his personal goals, evidenced by completing and the way in which he generally presented within the program. Whilst with us he made positive progress and was considered to be genuine in his desire to move forward." He was reported to have shown "great artistic skills" with his guitar. 25 For the purposes of re-sentencing a report was admitted from Mary Anderson, clinical psychologist. She interviewed the applicant at Silverwater on 18 October 2004. 26 It is unnecessary to go to the full detail of the report, however, it may fairly be described as markedly encouraging as to the applicant's prospects of rehabilitation. (s 21A(3)(h)). 27 An intellectual assessment showed him to perform within the average range of ability. Ms Anderson noted "he was fluent in his reading and demonstrated sound literacy skills, sufficient for high school and vocational input." 28 Inquiries by Ms Anderson from a psychologist who had carried out some other tests indicated that he performed in the average range on the verbal scale. 29 Ms Anderson reported: "Overall, Alan has been assessed on two occasions to be functioning in the average range of ability. He has sound literacy skills, and it would appear that his consistent primary schooling has provided him with a sound educational base. Although he did not experience a consistent ongoing high school education, he is able to engage with educational and vocational opportunities, and should be encouraged in this regard. He is interested in attending TAFE, or some other organisation that could help him to develop his musical skills and knowledge. This could be a source of eventual vocational opportunity and self-development, which would be beneficial to Alan." 30 She also said: "His interest in helping to teach music to young people would be an activity with positive benefits for himself and as well as his pupils. Alan also needs some vocation pursuit, and opportunities need to be identified for him. Vocational counselling and identification of relevant educational programs will be important. Alan has the ability to benefit from formal educational opportunities." 31 An affidavit of the applicant lends support to the view that he has and is making some vocational progress whilst in gaol. 32 I consider that the applicant has good prospects of rehabilitation; particularly assisted by an extended period of supervision. The sentencing judge found special circumstances on the basis of the applicant's age and the need for lengthy supervised rehabilitation. I agree with that view. 33 Having regard to the considerations I have discussed above I consider that the applicant should be re-sentenced in accordance with the orders I now propose. Orders 34 I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence and in lieu thereof the applicant be sentenced to a term of imprisonment which is to consist of a non-parole period of thirty months and a total term of five years, each to date from 31 March 2003, with the non-parole period expiring on 30 September 2005. 4. Specify 1 October 2005 as the earliest date on which the applicant will be eligible for release on parole. ************* Last Modified: 11/09/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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