New South Wales Court of Criminal Appeal CITATION: R v Byrne [2005] NSWCCA 141 HEARING DATE(S): 14/04/2005 JUDGMENT DATE: 14 April 2005 JUDGMENT OF: Wood CJ at CL at 1; Grove J at 35; Hoeben J at 2 DECISION: Leave to appeal granted; appeal dismissed. CATCHWORDS: Appeal against sentence - was start point too high in multiple sentences partially concurrent and partially cumulative - did sentencing judge make error of fact. LEGISLATION CITED: Crimes Act 1900 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 Darren Brett Byrne - Applicant PARTIES: Crown - Respondent FILE NUMBER(S): CCA 2005/222 R J Button - Applicant COUNSEL: G Rowling - Crown SE O'Connor - Solicitor for Legal Aid SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court 04/11/0695 LOWER COURT FILE NUMBER(S): 04/11/0224 LOWER COURT JUDICIAL OFFICER: Hock DCJ IN THE COURT OF CRIMINAL APPEAL 2005/222 WOOD CJ at CL GROVE J HOEBEN J Thursday, 14 April, 2005 REGINA v Darren Brett BYRNE Judgment 1 WOOD CJ at CL: I will ask Hoeben J to deliver the first judgment: 2 HOEBEN J: Offences and sentence On 23 July 2004 the applicant was sentenced as follows by Hock DCJ. The offences are set out in chronological order rather than as presented to the court. (i) 18 April 2003 – break enter and steal contrary to s111(1) of the Crimes Act 1900 – maximum penalty 14 years imprisonment. To include two break enter and steal offences on Form 1. Sentenced to fixed term of imprisonment of 18 months to commence on 9 October 2003 and to expire on 8 April 2005. (ii) 9 September 2003 – aggravated break enter and steal contrary to s112(2) of Crimes Act – maximum penalty 20 years imprisonment. To include two aggravated break enter and steal offences contrary to s112(2), two break enter and steal offences contrary to s112(1), one larceny offence contrary to s117 and two malicious damage to property offences contrary to s195(1) on a Form 1. Sentenced to non-parole period of 2 years to commence on 9 October 2005 and to expire on 8 October 2007 with a parole period of 2 years to expire on 8 October 2009. (iii) 21 September 2003 – break enter and steal contrary to s112(1) Crimes Act – maximum penalty 14 years imprisonment. To include two break enter and steal offences contrary to s112(1) on Form 1. Sentenced to fixed term of 2 years imprisonment to commence on 9 April 2004 and to expire on 8 April 2006. (iv) 22 September 2003 – aggravated break enter and steal contrary to s112(2) Crimes Act – maximum penalty 20 years imprisonment. To include three break enter and steal offences contrary to s112(1), one aggravated break and enter offence contrary to s113(2), two larceny offences contrary to s117 and one goods in custody offence contrary to s527C(1)(a) on Form 1. Sentenced to non-parole period of 2 years to commence on 9 October 2004 and to expire on 8 October 2006 with a parole period of 8 months to expire on 8 June 2007. (v) 25 September 2003 – break enter and steal contrary to s112(1) Crimes Act . Sentenced to fixed term of imprisonment for 18 months to commence on 9 October 2004 and to expire on 8 April 2006. (vi) 9 October 2003 – break and enter with intent to commit serious indictable offence contrary to s113(1) Crimes Act – maximum penalty 10 years imprisonment. Sentenced to fixed term of imprisonment of 12 months to commence on 9 April 2004 and to expire on 8 April 2005. 3 There were eighteen further matters dealt with by way of Form 1: (i) 1 May 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (ii) 21 May 2003 – two offences of malicious damage to property contrary to s195(a). (iii) 23 June 2003 – have stolen goods in custody contrary to s527C(1)(a). (iv) 27 June 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (v) 29 June 2003 – larceny contrary to s117. (vi) 21 July 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (vii) 31 July 2003 – larceny contrary to s117. (viii) 11 August 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (ix) 2 September 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (x) 4 September 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (xi) 11 September 2003 – larceny contrary to s117. (xii) 23 September 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (xiii) 23 September 2003 – aggravated break and enter dwelling house and commit serious indictable offence contrary to s112(2). (xiv) 25 September 2003 – aggravated break and enter dwelling house and commit serious indictable offence contrary to s112(2). (xv) 2 October 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (xvi) 4 October 2003 – break and enter dwelling house and commit serious indictable offence contrary to s112(1). (xvii) 6 October 2003 – aggravated break and enter dwelling house with intent to commit serious indictable offence contrary to s113(2). 4 The effect of the sentences was a total term of imprisonment of 6 years to commence on 9 October 2003 and to expire on 8 October 2009 with a non-parole period of 4 years to expire on 8 October 2007. Background to offences 5 Her Honour dealt with the facts of the offences for which the applicant was sentenced at ROS 1–5. Her Honour's review of the facts is accepted by the applicant. 6 18 April 2003 – break and enter dwelling house and commit serious indictable offence (s112(1)). Between 3.15 and 4.45 pm the applicant broke and entered a home unit at Fifth Avenue, Campsie. The means of entry was breaking the kitchen window. Two bedrooms were ransacked and $2,000 in Australian currency and $600 in Chinese yen was stolen. Blood was left on the kitchen floor which connected the applicant to this offence. 7 9 September 2003 – aggravated break and enter dwelling house and commit serious indictable offence (s112(2)). The circumstance of aggravation was the malicious infliction of actual bodily harm on the victim. The applicant forced open a window at 211 Doncaster Avenue, Kingsford and entered a house. He ransacked the premises and took two rings, bags of coins and a backpack. 8 The home owner returned as the applicant was leaving. The applicant had a pair of scissors in his hand, with which he threatened the owner. There was a brief struggle during which the applicant bit the home owner twice on the upper left arm causing bleeding and bruising. The bag containing the coins was left behind after the struggle, but the two rings were taken. They had a combined value of $2,000. 9 21 September 2003 – break and enter dwelling house and commit serious indictable offence (s112(1)). The applicant broke and entered a unit at 33 Wells Street, Redfern and stole jewellery, $400 in cash and electronic equipment to the total estimated value of $4,680. 10 22 September 2003 – aggravated break and enter dwelling house and commit serious indictable offence (s112(2)). The circumstance of aggravation was that the applicant knew that there was a person in the dwelling house at the time that he broke and entered it. At about 9.30 pm the applicant stole a mobile phone and a magazine from the bedroom of a unit in Frederick Street, Campsie. The occupier was at home watching TV at the time, but was not aware that the applicant was in the house. 11 25 September 2003 – break and enter dwelling house and commit serious indictable offence (s112(1)). The applicant broke and entered a unit in Fourth Avenue, Campsie and stole $630, a mobile phone and jewellery. 12 9 October 2003 – break and enter dwelling house with intent to commit serious indictable offence (s113(1)). The applicant broke and entered the side window of a unit in Second Avenue, Campsie. The applicant was under surveillance by police, having been identified as a suspect in relation to other break enter and steal offences in that area. He was arrested as he left the premises. No property had been taken at that stage. 13 At the time that each offence was committed, the applicant was on conditional liberty, either by way of parole or by way of bail. 14 In relation to the Form 1 matters, it can be seen that each involved a separate and discrete offence. None was directly connected to any of the offences for which the applicant was charged. Subjective matters 15 The applicant was born on 25 January 1972 and was thirty one at the time of the offences. 16 The applicant had an extensive criminal record from the age of twenty four, involving some drug related offences but mainly offences of dishonesty. Although the previous offences had been dealt with in the Local Court, the applicant had served terms of imprisonment. On 30 October 2001 he had been sentenced in the Burwood Local Court to 2 years of imprisonment with a non-parole period of 18 months for eight break enter and steal offences and other offences of dishonesty. As indicated the offences presently under consideration commenced within the first month of him being released on parole. 17 By way of explanation for his conduct, the applicant referred to his escalating abuse of drugs and the need to obtain money with which to fund his addiction. 18 The applicant's family background was difficult. His mother died when he was five. He and his siblings were brought up by their grandmother, who had difficulty controlling him. He was sexually abused by a family member which added to his problems. His attendance at school was irregular. He commenced his substance abuse in his adolescence and by the date of the sentencing proceedings had developed hepatitis C. 19 An important subjective element was the assistance provided by the applicant to the authorities in respect of two murder charges. The assistance included undertakings to give evidence in both matters. The fact of this assistance would require that the applicant move completely out of his previous neighbourhood on his eventual release from custody and he might also be required to enter the Witness Assistance Program. He was in custody in the Special Purpose Prison. Remarks on sentence 20 Her Honour considered the offence of 9 September 2003 (the second offence in point of time) as the most serious. She considered that this offence fell into the mid-range of seriousness for an offence of that type. Absent other considerations, she would have considered a sentence greater than the standard non-parole period to be appropriate. 21 Her Honour regarded all of the offences as serious. She observed that a home owner suffered not just from the loss of his or her possessions, but also from feelings of violation and lack of security in the home. General and specific deterrence and protection of the community were important considerations so that a custodial sentence was the only appropriate penalty for each offence. 22 Her Honour reviewed the subjective matters to which reference has already been made, and concluded that gaining employment was a vital factor in the applicant's recovery from drug abuse. She considered that his prospects for rehabilitation were reasonable and would be greatly enhanced if he managed to become and remain drug free. 23 Her Honour made specific reference to the assistance provided by the applicant to the authorities and to the consequential effects which that would have on him, both when serving his terms of imprisonment and upon his release. In relation to his period in custody, her Honour said: "On the evidence it does not appear the offender will suffer harsher custodial conditions as he said in evidence he was better off in protective custody and felt secure with the other inmates at the SPP. However, the offender did give evidence, which I accept, that he had been threatened and realistically his ongoing security will be of continuing concern to him." The evidence to which her Honour referred was a communication to the applicant by a fellow inmate that he had been approached to murder the applicant. 24 Her Honour accepted that the applicant had entered pleas of guilty at the first reasonable opportunity. Taking that matter into account, and also taking into account the applicant's assistance to authorities, her Honour gave the applicant the benefit of a fifty percent discount on the sentence which otherwise she would have considered to be appropriate. Her Honour accepted that there was some evidence of remorse to be inferred from the assistance provided by the applicant to the authorities and from his intention to commence a new life on his release. 25 When imposing the sentences her Honour had specific regard to the principle of totality so that some sentences were fully concurrent, but there was partial accumulation in relation to others. Her Honour specifically found special circumstances because the sentences were partially cumulative and because of the need for substantial supervision if the applicant was to be successfully rehabilitated. Grounds of appeal 1 – The sentence is manifestly excessive when one considers the starting point adopted by her Honour and the discount applied to it. 26 No challenge was made to the fifty percent discount applied by her Honour. The submission was that since the effect of her Honour's sentences was a head sentence of 6 years with a non-parole period of 4 years, she must have used as her start point a head sentence of 12 years which was manifestly excessive. 27 This submission seeks to treat as one offence what was in fact six separate offences, each of significant criminality and four of which took into account eighteen Form 1 matters. Her Honour was imposing not a single sentence but six separate sentences in relation to those offences. It is a fundamental misconception to conceptualise what her Honour did as the imposition of a single sentence. Such an approach is, however, implicit in the submission. 28 What her Honour was required to do by Pearce v The Queen (1998) 194 CLR 610 was to award an appropriate sentence in relation to each offence, apply any discounts which were appropriate and then look at the totality of the sentences to ensure that the final result was not excessive and appropriately took into account the objective seriousness of the offences, balanced by mitigating subjective matters. This her Honour did, partially accumulating some of the sentences. No error has been demonstrated in her Honour's approach. 29 As her Honour appreciated, each of the offences was serious and in the case of four of them, eighteen additional offences had to be taken account of on a Form 1. All of the offences and Form 1 matters had been committed whilst the applicant was on conditional liberty. The commencement of the sequence of offences within a month of his release from imprisonment for similar offences showed an absence of remorse and a contempt for the conditional liberty system. Not only has no error been revealed, I am not persuaded that her Honour's sentences, with their concurrency and partial accumulation, were otherwise than entirely appropriate. 2 – Her Honour made an erroneous finding of fact about a significant matter. 30 This submission relied upon the way in which her Honour summarised the applicant's evidence as to how he was serving his sentence in the Special Purpose Prison. 31 It was submitted that her Honour's comment placed too favourable an interpretation on the applicant's description of the conditions which he was experiencing whilst in custody. In reality, it was submitted, the Special Purpose Prison was a place of profound psychological insecurity and physical restriction. It was clear from the applicant's evidence that he would suffer harsher custodial conditions whilst in the Special Purpose Prison and accordingly her Honour should have further reduced the applicant's sentences to have regard to the harsh conditions under which he would be serving his sentences of imprisonment. 32 It is clear from the applicant's evidence that conditions in the Special Purpose Prison are somewhat more restrictive than those in the general prison system. Her Honour appreciated this. A careful reading of the applicant's evidence on this subject does not persuade me that her Honour incorrectly characterised that evidence in her remarks on sentence. In any event, for the reasons set out above the evidence of the applicant on this issue was not such as would justify an adjustment to the overall structure of her Honour's sentences so as to produce a lesser period of imprisonment for the applicant. 33 The orders which I propose are: (1) Leave to appeal granted. (2) Appeal dismissed. 34 WOOD CJ at CL: I agree. 35 GROVE J: I agree. 36 WOOD CJ at CL: The orders of the court will therefore be as proposed by Justice Hoeben. ********** 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.