New South Wales Court of Criminal Appeal CITATION: R v Stephen Martin Andrews [2005] NSWCCA 199 HEARING DATE(S): 20/05/2005 JUDGMENT DATE: 20 May 2005 JUDGMENT OF: Simpson J at 24; Buddin J at 1; Hall J at 25 DECISION: Leave to appeal granted. Appeal allowed. Confirm the sentences imposed in respect of counts 1 - 5. Quash the sentence imposed in respect of count 6. In lieu thereof, sentence the applicant to a non-parole period of 2 years 2 months to commence on 20 March 2005 and to expire on 19 May 2007, with the total term being one of 3 years 4 months to commence on 20 March 2005 and to expire on 19 July 2008. The applicant will be eligible for parole on 19 May 2007. CATCHWORDS: Sentence - multiple offences aggravated break, enter and steal - failure to give due weight to subjective matters. LEGISLATION CITED: Crimes (Sentencing Procedure) Act R v Ellis (1986) 6 NSWLR 603 R v Ponfield (1999) 48 NSWLR 327 CASES CITED: R v Roby [2003] NSWCCA 242 Veen v The Queen (No2) (1988) 164 CLR 465 Regina PARTIES: Stephen Martin Andrews FILE NUMBER(S): CCA 2005/280 G Rowling (Crown) COUNSEL: A Francis (Applicant) S Kavanagh (Crown) SOLICITORS: SE O'Connor (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/51/0018 LOWER COURT JUDICIAL OFFICER: Nield DCJ IN THE COURT OF CRIMINAL APPEAL 2205/280 SIMPSON J BUDDIN J HALL J FRIDAY 20 MAY 2005 REGINA v STEPHEN MARTIN ANDREWS Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences which were imposed upon him in the District Court following his pleas of guilty in the Local Court to six offences of aggravated break enter and commit a serious indictable offence, namely larceny. The aggravating factor in each case was that the offence was committed in company. All but one of the offences were committed in the company of a man named Connor. The applicant committed the remaining offence in the company of a man named Parmenter. Parmenter, who was also involved in three of the five offences which the applicant committed with Connor, has not been arrested. 2 The applicant was sentenced to a fixed term of 2 years imprisonment, to date from 20 November 2003, in respect of count 1. He was sentenced to concurrent fixed terms of 2 years imprisonment, to commence on 20 May 2004, in respect of counts 2 and 3. He was sentenced to a fixed term of 2 years imprisonment, to commence on 20 November 2004, in respect of count 4. He was sentenced to a fixed term of 2 years imprisonment, to commence on 20 May 2005, in respect of count 5. Finally, in respect of count 6, he was sentenced to a term of 4 years imprisonment, to commence on 20 March 2005, with a non-parole period of 2 years 8 months which was also to commence on 20 March 2005. The total sentence will thus expire on 19 March 2009 and the non-parole period will expire on 19 November 2007. The effective overall sentence is accordingly one of 5 years 4 months imprisonment with a non-parole period of 4 years. An effective total sentence of 4 years 8 months, with a non-parole period of 3 years 6 months, was imposed upon Connor. No issue of parity has been raised. 3 The offences were committed upon sporting clubs, namely golf or bowling clubs, over the course of a four day period. At Connor's request, the applicant had gone to Adelaide in order to collect Connor and return him to Queensland, where they were both living at the time. The applicant and his co-offenders were on the return journey to Queensland when they apparently ran short of money. 4 The modus operandi which was employed in respect of these offences was very similar in each case. As the sentencing judge found, it involved minimal planning and a lack of sophistication. On each occasion the offenders broke into the premises in question late at night at a time when they were likely to be unoccupied. Once they were inside, they broke open poker machines and removed their contents. They then left the premises in the applicant's vehicle. 5 The applicant and Connor were stopped by police as they were travelling in the Grafton area in the applicant's vehicle. When the vehicle was searched, police located housebreaking implements as well as a significant sum of money in $1 coins. In all nearly $4000 was stolen from the various clubs, some of which was recovered. Damage totalling in excess of $3,000 was caused to the premises into which the offenders had broken. Although there were a number of features of the case which brought it within the guideline referred to by this Court in R v Ponfield (1999) 48 NSWLR 327, the sentencing judge nonetheless concluded that the offences committed by the applicant fell at the lower end, "if not at the bottom", of the range of objective seriousness for such offences. 6 The applicant, who is aged 40, has a lengthy criminal history for offences of dishonesty dating back to 1980. He has served a number of terms of imprisonment for offences of break, enter and steal both in this State and in Queensland. His antecedents were such that the sentencing judge was entitled to have regard to the issue of personal deterrence as assuming greater significance than might otherwise be the case: See Veen v The Queen (No2) (1988) 164 CLR 465 at 477. 7 The sentencing judge allowed the applicant a discount of 25% for his pleas of guilty, which his Honour observed had a "considerable utilitarian value". His Honour also found that the applicant had made full and forthright admissions to the police concerning his involvement in these matters. The sentencing judge also found that those admissions were of particular value as the Crown case in relation to each offence "was not strong". There was, for example, no forensic evidence linking him to any of the offences although his vehicle was seen in the vicinity of one of the clubs shortly after it had been broken into. 8 His Honour indicated that he was prepared to impose a non-parole period which was less than the standard non-parole period provided for in s 54A of the Crimes (Sentencing Procedure) Act because "the offences fall at the bottom of the range of seriousness for the offences and the offender's guilty pleas". His Honour declined however to make a finding of "special circumstances". 9 The applicant gave evidence during the course of the sentence hearing. He also relied upon a report of Dr Sharp which outlined a number of problems which were affecting his physical health. In 1983 the applicant was hospitalised after having been knocked from his bicycle. He sustained a number of serious injuries, including a fractured leg, the loss of his spleen, a damaged left kidney and a collapsed right lung, as well as multiple abrasions to his arms and legs. He had undergone surgery in hospital where he had remained for about a month. He had been in intensive care for a period because he had developed pneumonia. The injuries which he sustained have left him with some measure of permanent impairment. He also underwent a splenectomy and a partial resection of his left kidney. This has left him vulnerable to infection and will require him to take medication for the remainder of his life. Dr Sharp indicated that the applicant's current medical problems included hypertension, asthma, dyslipidaemia, osteoarthritis in both knees, recurrent attacks of viral conjunctivitis, the shortening of one leg as a consequence of a transverse fracture to the leg, a history of renal calculi, and dizzy spells and headaches. 10 Dr Sharp summarised his concerns about the applicant's physical health in the following terms: Mr Andrews has a large number of medical problems which, when taken individually are reasonably well controlled. Collectively they add up to quite a burden. In particular his increased Body Mass Index and recent chest pain are somewhat of a concern. These when combined with his hypertension increase his risk for ischaemic heart disease. One of the problems he will experience whilst in jail is frequent transfer from the prison he is in to various specialised clinics held at Long Bay jail or Prince of Wales Hospital at Randwick. This will make it difficult for him to keep in contact with his son of whom he has custody. There is also the problem that it may take six months or more to get to some clinics, in particular the orthopaedic clinic. I have mentioned that he has had problems with renal calculi in the past. There is no Urology Clinic at Long Bay jail. The delay in seeing these specialists may be twelve months or more. His significant medical problems are likely to be exacerbated whilst he is in jail, despite treatment given by the doctors within the jail system, mainly due to the delays in seeing specialists at their clinics. It should also be noted that there is no general physician within the jail system since the death of Dr Barry Pascoe four years ago. This makes Mr Andrews's position more difficult as I believe he has a number of significant health problems that require a general physician to 'oversee and coordinate the management' of these multiple problems. 11 In respect of that material, the sentencing judge observed that "I do not doubt that [the applicant] has a number of problems with his physical health. However those problems are, to a greater or lesser extent, under control and notwithstanding the comments of the doctors, will be able to be kept under control in prison." 12 There was also a body of evidence before the sentencing judge which showed that the applicant had had a difficult upbringing. His natural parents separated when he was four. His father was of aboriginal descent. The applicant's father subjected the applicant to serious physical abuse when he was a child, apparently because he could not accept the fact that his son was not of aboriginal appearance. It may well be that his father entertained doubts about the issue of the applicant's paternity. The applicant's father, who was an alcoholic, subsequently murdered his second wife. A psychologist, who prepared a report on the applicant's behalf, was of the opinion that this event was likely to "have had a traumatising effect on [the applicant] as a child and is likely to have contributed to his impulsive behaviour both as a teenager and subsequently". The applicant's father escaped from prison and committed suicide in 1977. 13 The applicant was divorced from his first wife. He has two children from a subsequent relationship which has now also ended. He was awarded custody of his 16 year old son who is living with the applicant's new partner whilst he is in custody. The relationship with his new partner appears to be a stable one. She remains very supportive of the applicant and has continued to visit him in gaol. She also gave evidence on his behalf at the sentence hearing. The applicant however expressed concerns about the welfare of his 15 year old daughter, who remains in the custody of her mother who has remarried. The daughter's stepfather was said to be serving a sentence for offences involving paedophilia. The applicant gave evidence that his daughter had told him that she had been sexually abused by her stepfather over a five year period. 14 There was also evidence that the applicant had been gainfully employed during those times when he was in the community. His previous employer had indicated that he was a good worker and had said that he would offer the applicant employment upon his release. 15 The sentencing judge referred to the pre-sentence report and the other reports tendered on the applicant's behalf in the following terms: I do not see any need to repeat or paraphrase what is contained in those reports, because I do not see any relationship between what is contained in those reports and the offences committed by the offenders. There comes a time in everyone's life when what has gone before cannot be blamed for what happens now. I consider that this time has long since come and past in the lives of the offenders. Neither of them can blame what happened in their past for their commission of the subject offences. 16 The applicant's first ground of appeal is that the sentencing judge erred in failing to give proper weight to the applicant's subjective case. In support of that submission, particular emphasis was placed upon the passage to which I have just referred. The applicant also placed reliance upon this Court's decision in R v Roby [2003] NSWCCA 242. The sentencing judge in that case had said of that offender's subjective circumstances that they "can no longer be of any relevance so far as these (ie present) offences are concerned". Spigelman CJ, with whom Hidden J agreed, observed that: I am, however, concerned with his Honour's flat rejection of the continued "relevance" in any way of the Applicant's personal circumstances, on which the sentencing judge and this Court relied, in the sentencing task on the previous occasion. I can accept that such a personal background is entitled to less weight in the sentencing task and that the requirements of general and personal deterrence are entitled to more weight, on a subsequent occasion, but that is not, however, what his Honour appears to have done. He asserted that the personal subjective circumstances of a tragic early personal history were completely irrelevant. Whilst I agree they are entitled to less weight, I do not agree that they should be regarded as entirely spent, as his Honour appears to have done. I would not myself, but for this error, have regarded the sentences actually imposed as manifestly excessive, but I do believe by determining that the Applicant's personal history was no longer of any relevance in the sentencing exercise before the Court, there was a legal error entitling this Court to intervene. (at pars 26-7) 17 I accept the applicant's submission that the sentencing judge in the present case has fallen into error of precisely the same kind. His Honour appears to have treated the applicant's early personal history as being entirely irrelevant rather than of reduced weight. I would uphold this Ground of Appeal. 18 The second ground of appeal asserts that the sentencing judge "gave insufficient weight to the assistance provided by the applicant". Counsel for the applicant pointed to evidence, which emerged during the course of his electronically recorded interview with police, which demonstrated that the applicant had expressed a willingness to assist in the prosecution of his co-offenders. As events transpired, Connor also made full admissions when he was interviewed, although it is to be observed that that occurred at a point in time after the applicant's interrogation. Parmenter, as I have said, has not been brought to justice. The fact that his assistance was not ultimately required, does not however deprive the applicant of any entitlement to leniency on account of this aspect of the case. 19 The sentencing judge made the following observations upon the issue of the applicant's contrition. His Honour said: It is difficult, if not impossible, to say whether or not the offenders are genuinely contrite for having committed the offences. I accept that ready admissions to police and early pleas of guilty can show contrition. The fact that the offenders readily admitted having committed offences, of which police might have had difficulty in proving that they had committed, can show contrition. I suppose looking then at those features, the offenders are contrite. But when I look at their criminal record of so many, many breaking, entering and stealing offences and when I consider the offenders' motivation for committing these offences, I really doubt that the offenders are contrite for doing what they did. 20 As I have said, the sentencing judge indicated that the applicant's admissions to the police were of particular significance in view of his finding that the Crown case against him in respect of the various cases was "not strong". Given that combination of circumstances, it appears to me that there is substance in the applicant's contention that he was entitled to some further amelioration of sentence on account of his contrition, particularly given his offer to assist the authorities. A fair reading of the sentencing judge's remarks would suggest that he received no such benefit. 21 I would not however accept the applicant's further submission that the sentencing judge erred in not giving effect to the principles in R v Ellis (1986) 6 NSWLR 603. As I understand the evidence, this was not a case in which the applicant disclosed criminal conduct which would have otherwise remained undetected. Nor was it a case in which the operation of s 23 of the Crimes (Sentencing Procedure) Act 1999 assumed any real significance. 22 I am persuaded, in view of the errors which have been identified, that it is appropriate for this Court to intervene and re-sentence the applicant. In doing so, I have had regard to the contents of the applicant's affidavit concerning his progress whilst he has been in custody, as well as to the various matters identified in s 21A of the Crimes (Sentencing Procedure) Act 1999 which are of particular relevance to the present case. The reduction in the overall length of the sentences which I propose must, however, given all the circumstances, be relatively modest. 23 I propose the following orders: 1 Leave to appeal granted. 2 Appeal allowed. 3 Confirm the sentences imposed in respect of counts 1 – 5. 4 Quash the sentence imposed in respect of count 6. 5 In lieu thereof, sentence the applicant to a non-parole period of 2 years 2 months to commence on 20 March 2005 and to expire on 19 May 2007, with the total term being one of 3 years 4 months to commence on 20 March 2005 and to expire on 19 July 2008. 6 The applicant will be eligible for parole on 19 May 2007. 24 SIMPSON J: I agree. 25 HALL J: I also agree. 26 SIMPSON J: The orders will be as proposed by Buddin J. ********** 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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