R v Shorten [2005] NSWCCA 106

New South Wales Court of Criminal Appeal

CITATION: R v Shorten [2005] NSWCCA 106

HEARING DATE(S): 24/03/05

JUDGMENT DATE: 24 March 2005

JUDGMENT OF: James J at 1; Hislop J at 23; Hall J at 24

DECISION: Leave to appeal against sentence granted. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - sentence - offence of breaking, entering and stealing - delay in prosecution

LEGISLATION CITED: Crimes Act

Mill v The Queen (1988) 166 CLR 59 R v Kay [2004] NSWCCA 130 CASES CITED: R v Law (1995) 84 A Crim R 142 R v Todd [1982] 2 NSWLR 517

PARTIES: Regina v Gregory Allan SHORTEN

FILE NUMBER(S): CCA 2004/3051

C Smith - Applicant COUNSEL: B Dawe QC - Respondent

SE O'Connor - Solicitor for the Legal Aid SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/41/0086

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

IN THE COURT OF CRIMINAL APPEAL 2004/3051

JAMES J HISLOP J HALL J

THURSDAY 24 MARCH 2005 REGINA v Gregory Allan SHORTEN

JUDGMENT

1 JAMES J: Gregory Allan Shorten has applied for leave to appeal against the sentence imposed on him in the District Court on 2 December 2003 by his Honour Judge Blackmore for one offence of breaking, entering and stealing, an offence under s 112 (1) of the Crimes Act for which the maximum penalty is imprisonment for 14 years. His Honour imposed a sentence of a fixed term of imprisonment of three years commencing on 25 March 2003 and expiring on 24 March 2006. The sentence did not include any period during which the applicant would be eligible for release on parole. 2 Most of the facts of the offence were undisputed. At some time between 4 May and 6 May 2001 the applicant broke and entered a house owned by a Mr and Mrs Varnasky at Mittagong and stole a quantity of goods from within the house. Mr and Mrs Varnasky, who had been away from the house for the weekend, returned on the evening of Sunday 6 May 2001. They observed that the house had been broken into and that a number of items of property were missing. Mr and Mrs Varnasky prepared an inventory of the property which was missing. 3 When he was spoken to by police about this offence, which did not occur until April 2003, the applicant admitted that he had broken into the house and that he had stolen some of the missing property but he denied that he had stolen all of the missing property. 4 The applicant was indicted before Judge Blackmore on a charge that he had broken and entered the dwelling house of Mr and Mrs Varnasky and committed the offence of larceny, without the chattels which he had allegedly stolen being specified in the indictment. When indicted, the applicant pleaded guilty. However, after the applicant had pleaded guilty, there was a lengthy sentence hearing before Judge Blackmore in which the Crown contended, and the applicant disputed, that he had stolen all of the items in the inventory of missing property. 5 In a judgment given on 2 December 2003 his Honour recorded that Mr Varnasky had given evidence that, when he and his wife had returned to the house on 6 May 2001, he had noticed two distinct sets of footprints inside the house. His Honour noted that the Crown had not charged the applicant with the offence of robbery in company and, this being so, his Honour considered that the Crown should be excluded from arguing that the applicant had been in company with another person when he committed the offence. His Honour held that any finding by him that the applicant had committed the offence in company with another person would be unfair to the applicant and would change the basis on which the applicant had entered his plea of guilty. His Honour proceeded to find that the second set of footprints inside the house had been placed there independently of the applicant, leading to a conclusion that someone other than the applicant had stolen some items of property from the house, after the applicant himself had left the house. Accordingly, the applicant was to be sentenced on the basis that he had stolen only the items of property which he admitted stealing. These items consisted of a large quantity of jewellery valued at about $54,000 for which the applicant had received $15,000 from a receiver, cash amounting to approximately $950 and some computer games. His Honour commented that, even on this basis, the offence committed by the applicant was a very serious one. 6 In his remarks on sentence his Honour referred to the applicant's criminal history. The applicant had more than 20 convictions for breaking, entering and stealing and numerous other convictions for offences of dishonesty. The applicant had committed the present offence, while on parole under a sentence for an offence of breaking, entering and stealing. He had been released from custody on parole only a few days before committing the offence. That the applicant had committed the present offence while he was on conditional liberty was an important circumstance of aggravation. 7 On 23 August 2002 for another offence of breaking, entering and stealing the applicant had been sentenced to a term of imprisonment of two years six months, which commenced on 25 March 2002 and would expire on 24 September 2004. At the express request of the applicant, the judge who had sentenced him had not set any non-parole period. Judge Blackmore made the sentence that he imposed partly cumulative on this sentence, so that the sentence he imposed commenced on 25 March 2003. 8 In his remarks on sentence Judge Blackmore referred to a number of subjective features of the applicant. The applicant was born on 13 October 1958 and was accordingly 42 years old at the time of committing the offence. The applicant said, when giving evidence in the proceedings on sentence, that by reason of the many years he had spent in prison he had become in effect institutionalised. His Honour commented in his remarks that the applicant had been treated leniently on many occasions by sentencing courts and had then proceeded to re-offend. His Honour referred to a number of reports about the applicant including a report by a Dr Allnutt, a psychiatrist, in which Dr Allnutt expressed the opinion that the applicant was an adult sufferer of an attention deficit disorder. 9 In his remarks on sentence his Honour noted what his Honour described as a "strident" request by the applicant that no non-parole period be set in any sentence imposed. His Honour said that "the offender is of the view that nothing constructive is achieved by parole. It should be remembered he lives in a country area where services are naturally limited". His Honour complied with the applicant's request that no non-parole period be set. As I have already noted, a similar request, which had also been complied with, had been made to the judge who sentenced the applicant on 23 August 2002. 10 There is only one ground of appeal against sentence, namely that the sentencing judge erred in failing to adequately take into account the delay in prosecution. 11 The facts relied on by counsel for the applicant as showing a delay in the prosecution of the applicant were that the offence had been committed between 4 and 6 May 2001, on 10 May 2001 a swab of what appeared to be human blood had been taken from the crime scene, on 9 January 2002 the swab had been found to contain human blood and on 27 June 2002 police had been notified that the blood from the swab matched the applicant's DNA. The applicant had not been arrested until 16 April 2003, when he admitted having committed the offence but disputed that he had stolen all of the missing property. It was submitted in written submissions that no satisfactory explanation had been given for the various delays which had occurred. 12 Counsel for the applicant referred to the decision of this court in R v Kay [2004] NSWCCA 130 a case involving somewhat similar facts, in which the court rejected a submission made on behalf of the applicant that the sentencing judge had insufficiently taken into account the delay which had occurred in the sentencing of the offender. Counsel for the applicant submitted that the present case was distinguishable from Kay on the basis that in the present case the delay between the commission of the offence and the imposition of the sentence was longer, the delay between the making of a DNA match and the arrest of the offender was longer and that in Kay's case a prior sentence had been imposed before a match had been made between a swab taken from the crime scene and the offender's DNA. 13 I accept that these factual distinctions do exist between the present case and Kay and that the present application should not be decided simply by applying the decision in Kay on the basis that the present application is indistinguishable from Kay. However, I consider that the present application should be determined by the application of principles rather than by an attempted point by point comparison between the present case and Kay. 14 In Kay McColl JA, who gave the leading judgment, referred to the often quoted passage in the judgment of Street CJ in R v Todd [1982] 2 NSWLR 517 at 519 on the subject of delay in the sentencing of an offender. Street CJ said:- "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on a subsequent occasion and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." 15 This passage in the judgment of Street CJ in Todd was referred to with approval by the High Court in Mill v The Queen (1988) 166 CLR 59 at 64-66. 16 In my opinion, when the principles stated by Street CJ in Todd are applied it can be seen that the only ground of appeal in the present application should be rejected. 17 In the first place, the delay in sentencing which occurred in the present case, although regrettable, was much shorter than the "lengthy" delay of several years which occurred in both Todd and Mill. 18 In the present case it was not submitted that the first of the factors referred to by Street CJ, that is progress towards rehabilitation during the delay in sentencing, had any application. In the present case there was no evidence whatever that during the period of any delay the applicant had made any progress towards being rehabilitated. 19 Nor was it submitted that the second factor referred to by Street CJ, that is that during a protracted period the offender had been left in a state of suspense or uncertainty, had any application. It is well settled that the only state of suspense or uncertainty which will be relevant is any state of suspense or uncertainty experienced by the offender after he has been arrested or after it has been indicated to him by some person in authority that he is likely to be prosecuted for the offence. Any suspense or uncertainty on the part of an offender as to whether his committing of the offence will ever be detected is not to be taken into account. See Kay especially at paras (30) to (33) and R v Law (Queensland Court of Appeal) (1995) 84 A Crim R 142 at 145 per curiam. In the present case the first indication to the applicant that he was likely to be prosecuted for the offence was when he was spoken to by police on 16 April 2003. There was then a delay of only a few months before he was sentenced. 20 The submission which was made on behalf of the applicant was that the sentencing judge had failed to comply with the third principle stated by Street CJ, that sentencing an offender for a stale crime, long after the committing of the crime, calls for a considerable measure of understanding and flexibility of approach. 21 I do not consider that it has been shown that the sentencing judge failed to comply with this principle. His Honour did refer to the delay which had occurred in the sentencing of the applicant in a passage in his remarks on sentence. His Honour said:- "… as the offence was committed before his last sentence, and had the DNA testing been carried out in a timely fashion and had he been charged, he could have been dealt with on the one indictment at the time of that sentencing. In the circumstances, this is a case where the principal of totality must be kept firmly in mind". 22 Accordingly his Honour took into account that, if such delay as had occurred had not occurred, the applicant might well have been sentenced for the present offence at the same time as he had been sentenced for another offence on 23 August 2002. His Honour reasoned that, if the applicant had been sentenced for the present offence on 23 August 2002, the sentencing judge would have had regard to the sentencing principle of totality but would have considered that a sentence should be imposed for the present offence which imposed some additional, separate punishment on the applicant. His Honour concluded that he should make the sentence of three years imprisonment he imposed commence on 15 March 2003, when the sentence imposed on 23 August 2002 still had 18 months to run, with the practical consequence that the sentence imposed by his Honour would impose additional, separate punishment on the applicant for the present offence but only to the extent of imprisonment for eighteen months. In my opinion, it has not been shown that the sentencing judge failed to demonstrate the understanding and flexibility of approach required by the third principle stated by Street CJ. In my opinion, the only ground of appeal against sentence should be rejected and, accordingly, while I would grant leave to appeal against sentence, the appeal itself should be dismissed. 23 HISLOP J: I agree. 24 HALL J: I agree. 25 JAMES J: The orders of the court will be as proposed by me.