New South Wales Court of Criminal Appeal CITATION : R v Parker [2004] NSWCCA 115 HEARING DATE(S) : 6 April 2004 JUDGMENT DATE : 6 April 2004 JUDGMENT OF : Handley JA at 1; Dowd J at 2; Greg James J at 31 DECISION : Leave granted; appeal allowed; sentences imposed quashed; resentenced CATCHWORDS : Appeal against severity - taking into account pleas of guilty - matter could have been brought before Local Court - manifest severity LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure Act) 1999 CASES CITED : R v Thompson (2000) 49 NSWLR 383 PARTIES : Crown Benjamin Parker FILE NUMBER(S) : CCA 60469/03 COUNSEL : Mr G. Rowling (Crown) Ms R. Burgess (Applicant) SOLICITORS : Mr A. Cheung (DPP) LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0144 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER : - 7 - IN THE COURT OF CRIMINAL APPEAL 60469/03 HANDLEY JA DOWD J GREG JAMES J Tuesday, 6 April 2004 REGINA v BENJAMIN PARKER Judgment 1 HANDLEY JA: I agree with Dowd J. The order of the Court will be as proposed by Dowd J. 2 DOWD J: The applicant has sought leave to appeal against severity of sentences imposed by Freeman DCJ consequent upon a plea of guilty to two charges of Break, Enter And Steal, contrary to s112 of the Crimes Act 1900. 3 On the first count a fixed term of three years was imposed and on the second count, being an offence at Kariong on 16 October 2002, there was taken into account a matter on a Form 1. A sentence of five years was imposed with a non-parole period of three years, the non-parole period being concurrent with the fixed term on the first count. Both sentences commenced on 4 December 2002, the non-parole period thus expiring on 3 December 2005, the overall sentence to be completed on 3 December 2007. 4 On the first count, the victim left his house secure on a Friday, and on the following Monday discovered glass broken at his rear door and the door unlocked. A fax machine and video cassette recorder had been removed. The applicant's fingerprints were located on a tin inside the victim's bedroom. 5 The second offence involved breaking into premises at Kariong on 16 October 2002. The applicant entered the premises, accompanied by a female, whose identity is known but whose whereabouts are not. The applicant stole a power drill, an electric rotor, a hammer drill, a camera with a zoom lens and a backpack in which he placed the other items. The backpack belonging to the victim was recognised by him as the applicant walked from the premises. The applicant was chased by the owner and all goods were recovered, except for the camera lens, which was, shortly afterwards, pawned. 6 The applicant had left an amount of blood at the entry where he broke into the window and his DNA was identified. The applicant admitted at the time of arrest that he had been at the premises and on becoming aware of the DNA evidence, said he had no recollection of being at Kariong, let alone breaking and entering, because of the effect of heroin and Serepax. The applicant was also identified from photographs. 7 On the Form 1 matter, the applicant had also cut himself, and he was thus identified by DNA. 8 There were strong Crown cases for each of these matters. 9 On sentencing, his Honour took into account that the applicant was then 25 years old, with a longstanding heroin addiction, and that he had come from a dysfunctional family environment, which had a history of alcoholism. The applicant had been placed under bonds, but had breached a condition of residence at the place in which he resided. 10 The applicant had been unable to find work in the Byron Bay area, whence he had removed himself. He returned to live with his mother at the Central Coast and took up old drug associations. In late 2002 the applicant was accepted, at his own behest, into a methadone program. 11 It is submitted on behalf of the applicant on the first ground of appeal that the sentencing judge erred in that he failed to take into account pleas of guilty. The applicant has submitted that his Honour made no reference to the pleas of guilty other than as the basis for conviction, and that his Honour failed to apply R v Thompson (2000) 49 NSWLR 383, which required the explicit statement of a plea of guilty being taken into account. In that decision, it was established that the utilitarian value of a plea of guilty should be assessed in the range of 10 to 25 per cent. 12 It was further submitted for the applicant that s22 of the Crimes (Sentencing Procedure) Act 1999 ("the Act") requires the Court to take into account the fact that the offender has pleaded guilty or indicates an intention to do so, and may impose a lesser penalty. Section 22 of the Act requires a court to indicate reasons for not providing the lesser sentence. 13 It therefore was submitted on behalf of the applicant that the sentences do not reflect a reduction for the utilitarian value and that this matter was overlooked. It was further submitted that the strength of the Crown case does not affect the issue of utilitarian value. 14 In reply, it was submitted by the Crown that the sentences clearly reflect the fact that a discount has been given, and it is further put by the Crown that his Honour did refer to the pleas. In that matter, however, I consider that his Honour's reference to the plea was in relation to the conviction only, that the plea operated as to proving the matters for the conviction, and that there is in fact no reference by his Honour to a discount for that plea. I consider that there is nothing in any of the remarks that his Honour made to reflect that it included the discount, and there is nothing in the sentence which indicates it has been reduced because of that plea. 15 In my view the first ground of appeal is made out in that his Honour has failed to take into account the reduction for plea. 16 The second ground of appeal is that his Honour did not take into account the fact that this matter could have been brought before a Local Court, and that the sentence is not indicative of that having been taken into account. The fact that a matter may be dealt with before a Local Court (and there are cases for taking a matter before a Local Court) is a factor which a court may in certain circumstances take into account. This case, in my view, was not one of those circumstances. 17 The issue is a matter of prosecutorial discretion, and it is a non-appellable discretion which is exercised. Clearly, in this case, the fact that there was involved a bond under s12 of the Crimes (Sentencing Procedure) Act 1999, and indeed, the fact that there were two bonds involved, is a matter of extreme severity and aggravation, which has to be taken into account on sentence. 18 Bonds are not lightly given for serious offences, and in the light of the applicant's criminal history, and in the light of the then breach of the two bonds, it is in my view a proper matter to be brought before the District Court, particularly, as is pointed out by the Crown, when the bond breached is a District Court bond. I do not therefore consider that this ground has been made out, as no basis has been shown for using the fact that it could have been brought before a Local Court, notwithstanding the amount involved, that should have been reflected in the sentence imposed. 19 As to the third matter, which is the ground of manifest severity, a number of cases have been referred to the Court. It is very difficult, except in one of those cases, where the Court has pronounced on the adequacy of a penalty, to draw inferences where they are appeals, either by the Crown or appeals by a person sentenced, to say that the Court has said "This is an appropriate sentence" or "This is not an appropriate sentence". 20 The range of sentences imposed for this sort of offence, to which the Court has been referred, shows that the sentences set in these two cases are higher than a significant number of the matters referred to, and higher than the statistics, but there is nothing in this sentence which causes either sentence to be outside the range. I consider, therefore, that this ground is not made out. 21 Therefore, on the basis that the first ground has been made out, and in the event of the other members of this Court concurring with my findings in relation to the first ground of appeal, it would be necessary therefore for the Court to re-sentence the applicant. In that respect, the applicant should be re-sentenced under the now repealed s44 of the Crimes (Sentencing Procedure) Act 1999, as this is an offence which occurred before 1 February 2003. 22 The Court has had the advantage of reading the material provided on sentence, the criminal antecedents of the applicant and the fact of the pleas of guilty, indicative both of remorse and as having utilitarian value. 23 The Court has also had provided to it evidentiary material in the affidavit of the applicant, which sets out a very impressive course of conduct whilst in custody, he now being classified C2. His progress through a drug free program has caused him to show that he has applied himself to dealing with his drug problems, and in fact, he is progressing quite quickly through that program. It seems to me, on the evidence, that if the applicant is able to transfer to the program which treats him with Buprenorphene, that he will more readily achieve his aim of becoming drug free. 24 The evidence produced by the applicant as to the programs he has taken is extremely impressive, as indeed is the evidence produced by his solicitor, which provides to the Court the evidence of his progress in the drug free wing program at Parklea, and information about the drug free program. The applicant is to be commended for that progress, as it appears to provide a significant foundation for rehabilitation when he emerges from custody. 25 In my view, however, the offences were serious offences, particularly because of his failure to take notice of either bond which had been imposed on him. Bonds are not matters just to be referred to as an aggravating factor, they are undertakings to be of good behaviour, and breaches of those should be reflected in the sentences that are imposed. 26 I would, on the first count, impose a fixed term which, but for the discount, would have been three years, but in the light of the plea of guilty, I would reduce to two and a half years, and would therefore impose a fixed term sentence of two and a half years to commence on 4 December 2002 and to expire on 3 June 2005. 27 On count 2, taking into account the Form 1 matter, which increases the severity of the penalty imposed, I would have commenced that sentence at five years, but in the light of the discount to which he is entitled for plea of guilty, I would reflect that in a discount of 20 per cent, reducing the head sentence to four years. 28 I consider that special circumstances have been made out to reduce the non-parole period to less than 75 per cent of the head sentence, and would reduce that sentence to two and a half years, the non-parole period to be concurrent with the fixed term on count 1. 29 Therefore, in relation to count 2, taking into account the matter on the Form 1, I would impose a sentence of four years, to commence on 4 December 2002 and to expire on 3 December 2006. I would fix a non-parole period of two and a half years to commence on 4 December 2002 and to expire on 3 June 2005, from which time the applicant would be eligible for release to parole, and I would direct, as his Honour did, that he be subject to the supervision of the Probation and Parole Service. 30 The orders therefore that I would propose are: i. that leave be granted; ii. that the appeal be allowed; iii. that the sentences imposed be quashed; iv. in lieu thereof the sentences which I have proposed be imposed. 31 GREG JAMES J: I agree also. ********** Last Modified: 06/07/2004 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. 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