Regina v King [2003] NSWCCA 352

New South Wales Court of Criminal Appeal

CITATION : Regina v King [2003] NSWCCA 352 HEARING DATE(S) : Friday 21 November 2003 JUDGMENT DATE : 21 November 2003

JUDGMENT OF : Handley JA at 54; Grove J at 1; Adams J at 55 DECISION : CROWN APPEAL ALLOWED

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - MANIFEST INADEQUACY - CROWN APPEAL - AGGRAVATION - OFFENDER UNLAWFULLY AT LARGE WHEN OFFENDING - MULTIPLE OFFENCES - VALUABLE TOTAL OF PROPERTY UNRECOVERED - PARITY - CO-OFFENDERS DEALT WITH AT YOUTH DRUG COURT - COMMENT ON PURPOSES OF REMARKS ON SENTENCE CASES CITED : R. v Dunn [2003] NSWCCA 169 Re AG Apln No 1 (Ponfield) 1999 45 NSWLR 327 PARTIES : Regina v David Scott King FILE NUMBER(S) : CCA 60218/03 COUNSEL : D. Frearson (Crown)/Applicant) A. Cook (Respondent) SOLICITORS : C.K. Smith (Crown) S. O'Connor (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/1059; 02/21/1254 FILE NUMBER(S) : LOWER COURT Payne DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60218/03

HANDLEY JA GROVE J ADAMS J Friday 21 November 2003

REGINA v DAVID SCOTT KING Judgment

1 GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Payne DCJ in the Penrith District Court on 29 May 2003. The respondent was sentenced on five principal charges to which he had previously pleaded guilty before a magistrate and had been committed for sentence. 2 Her Honour also took into account two series of offences on respective Forms 1. Without detailing the structure of the individual sentences, the effective consequence was a head sentence of three years imprisonment with a non-parole period of one year and nine months. 3 The respondent was born on 11 November 1983. He had a significant, substantially juvenile, prior record. Among entries on the record were findings of guilty for two charges of robbery whilst armed in respect of which, in April 1996, without conviction, the respondent was subjected to a control order for a total term of five months. 4 On 19 March 1997 he appeared in the Sydney District Court and was convicted on two counts of assault with intent to rob and sentenced to a minimum term of twelve months and sixteen days, together with an additional term of one year eleven months and twelve days, the custodial portion of which was to be served in a juvenile justice centre. 5 On 15 December 2000 the respondent again appeared before a Children's Court on five counts of robbery whilst armed with a dangerous weapon, and on each count was subjected to a control order without conditions for twelve months, with a non-parole period of twelve months. 6 On 2 October 2001 he again appeared before a Children's Court on charges of robbery, affray and attempting to escape from lawful custody, for which offences he was again subjected to control orders. He lodged an appeal to the Penrith District Court. He was in detention pending the hearing of that appeal which was scheduled for 1 March 2002. He absconded from detention on 2 January 2002 and was at large until arrested on 14 July 2002. 7 On the following day he was convicted of an offence of goods in custody at Blacktown Local Court and sentenced to imprisonment for a fixed term of one month, which term accordingly expired on 13 August 2002. There are other offences on his record, but I have scheduled the apparently more serious ones. 8 The facts found by her Honour for the purpose of sentence were expressed in a somewhat unconventional fashion and, by way of example, I recite those pertinent to the first charge; "(1) Date: 23 February 2002. Offence: break and enter and commit serious indictable offence, larceny. Location: Woodcroft. Amount: $24,052. Section, maximum penalty: Section 112(1), fourteen years imprisonment." 9 I am moved to comment that expression which is produced along the lines of some formula which can be likened to a filled-in form may not serve the primary purpose of remarks on sentence of advising an offender of why he or she is to be subjected to the assessed punishment about to be meted out. I am conscious that there are secondary purposes which may not be so affected, such as exposing reasons as to enable an appellate court to adjudicate if necessary, and publication for general deterrence and the information of the public, but in my view, informing the one who is to suffer punishment is the primary purpose of remarks, and this is not done by incantations of references in terms which the offender cannot reasonably be expected to understand. 10 The evidence before the sentencing Court included "facts sheets" to which her Honour made reference by exhibit number, but it is appropriate in order to achieve a proper understanding of what was involved in the offences to examine those facts. We are today informed of some supplementary facts to which I will later turn. I shall first summarise the facts as they were stated in the Court below. 11 In relation to the first charge, between 7.30 pm and 10 pm on Sunday 23 February 2002 the respondent went to premises in Woodcroft which were locked and secured. He went to the rear yard and forced entry through a ground floor door and, once inside, he searched several rooms and stole property. This included lady's earrings, wristwatch and a handbag containing perfume, $70 in cash, mobile telephones, photographic, computer and electronic equipment, keys and remote alarm controls for two vehicles, the total value of which was stated at $24,052. The respondent decamped with the property, which he disposed of in return for cash and drugs. 12 For this offence her Honour imposed a sentence of two years imprisonment commencing on 12 August 2002 and expiring on 11 August 2004, with a non-parole period of fifteen months. 13 In relation to the second charge, at about 7 pm on Friday 15 March 2002 the respondent and a co-offender, then aged seventeen years, went to different premises in Woodcroft. They went to the side ground floor window of the premises and forced entry by breaking it. Once inside they stole property from numerous rooms including a mobile telephone, electronic and photographic equipment, clothing, and a lady's black handbag containing jewellery and other property, the total value of which was stated to be $11,000. 14 The respondent and his co-offender moved the property to the garage of the premises where a Toyota Camry motor vehicle was stored. The keys to that vehicle had been acquired and they decamped in it with the stolen property. The vehicle was later dumped at Doonside and was recovered by police the next day in Penrith, where it was discovered to have been involved in a collision and was severely damaged. The value of the vehicle was stated to be $26,500. The stolen property was disposed of in return for cash and drugs. 15 On the charge of aggravated breaking, entering and stealing, the respondent was sentenced to two years seven months imprisonment, commencing on 12 August 2002 and expiring on 11 March 2005, with a non-parole period of one year six months. Four offences on a Form 1 were taken into account. 16 An offence of taking and driving a conveyance relating to the acquisition of the Toyota Camry motor car was taken into account on the Form 1. 17 In relation to the third charge, during one evening between Thursday 21 March 2002 and Sunday 24 March 2002, the respondent and another co-offender, also aged seventeen years, went to a third premises in Woodcroft. They entered the premises through an open garage door and the respondent smashed a hole through a gyprock wall thus gaining access to the inside of the premises. 18 Once inside they stole a DVD/video player and a watch, the total value of which was stated to be $780. That property was disposed of in return for cash and drugs. 19 For this offence the respondent was sentenced to imprisonment for one year and ten months, commencing on 12 August 2002 and expiring on 11 June 2004, with a non-parole period of twelve months. 20 In relation to the fourth charge, at about 7 pm on Friday 7 June 2002, the respondent went to a fourth premises in Woodcroft, the address of which suggests that it was two doors away from the premises mentioned in the facts concerning the third charge. He went to the rear yard of the premises and entered through a rear sliding door which was open and unlocked. There were several people inside the premises at the time and he saw them. 21 From the rear kitchen area he stole three mobile telephones and a bum bag, the total value of which was stated to be approximately $2,300. He left the premises but was later contacted by the victims on the stolen mobile telephone services and he directed verbal abuse at the callers. He later disposed of the mobile phones in return for cash and drugs. 22 On this charge the respondent was sentenced to imprisonment for one year and eight months, commencing on 12 August 2002 and expiring on 4 April 2004 with a non-parole period of twelve months. 23 In relation to the fifth charge, between midday and 10 pm on Saturday 22 June 2002, the respondent broke and entered premises at Granville by moving a window to a bedroom off its track. Once inside the premises the respondent stole property including computer and electronic equipment, jewellery, clothing, cordless and mobile telephones, sunglasses, a lady's handbag and dress watches, the value of which was stated to be $10,000. 24 For this offence her Honour imposed a sentence, taking into account two offences on a Form 1, of two years and three months commencing on 12 May 2003 and expiring on 11 August 2005, with a non-parole period of twelve months, commencing on 12 May 2003 and expiring on 11 May 2004. Her Honour directed the release of the respondent to parole on the last mentioned date. 25 I have mentioned above the offence taken into account in the sentence on the second charge relating to the Toyota Camry sedan. Three other offences were taken into account on that sentence. 26 On 27 May 2002 at 9 am the respondent went to yet another house in Woodcroft, which was locked and secured. He attempted to force entry but triggered an alarm whereupon he decamped the premises without stealing any property. A short time later he went to still other premises in the suburb, which were locked and secured. He used a small hammer to break a rear bathroom window and gained entry thereby. Inside the premises he stole property including a wristwatch, clothing, television and electronic equipment, the total of which was said to be $10,270. 27 The fourth offence taken into account related to yet another house in Woodcroft, into which the respondent on 20 June 2002 gained entry by opening a sliding door, which was closed but unlocked. He stole property including mountain bikes, a photographic camera and a torch, the value of which was stated to be $900. He later disposed of the property in return for cash and drugs. 28 As also indicated, two offences were taken into account when sentence was imposed in relation to the fifth charge. The first of these involved breaking into the same premises as were concerned in the fifth charge. Between Thursday 6 June and Sunday 9 June, again by moving a window from its track as he did on the later occasion, the respondent entered and stole a DVD player, the value of which was stated to be $300. 29 The second offence taken into account was committed on Thursday 11 July 2002 when the respondent removed a flyscreen and forced a window to the bathroom of other premises in Granville. Once inside he stole property, including photographic and electronic equipment with a stated value of $2,500. 30 As can be observed from the preceding statements, all of the offences by the respondent were committed whilst he was at large after absconding from detention. 31 Although the respondent made full admissions to his crimes when interviewed by police, including the disposal by him of the stolen property, he would not inform police where he disposed of that property. Save the damaged car, none has been recovered. 32 There were significant factors to be taken into account in assessing subjective matters. Her Honour stated that she had taken into account the content of a pre-sentence report, a juvenile justice report and a psychological report, but did not elaborate. She also adverted to the respondent's previous record, which was correctly described in Crown submissions as "extensive". I have made some reference to this earlier. 33 Her Honour's remarks included the following: "The prisoner is still only a young man, he having been born on 11 November 1983. He is now aged about nineteen and a half years. He has spent a considerable part, if not the large bulk of his life, in juvenile custody. This is tragic for him and his offending is very bad for the community.