New South Wales Court of Criminal Appeal CITATION: R v Joseph Allen Bellamy [2005] NSWCCA 329 HEARING DATE(S): 14 September 2005 JUDGMENT DATE: 14 September 2005 JUDGMENT OF: Grove J at 27; Simpson J at 28; Buddin J at 1 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: Criminal law - appeal against sentence - aggravated break, enter and steal (x 2) - Form 1 matters - parity - prior criminal record as an aggravating factor Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Criminal Appeal Act 1912 R v Blair [2005] NSWCCA 78 R v Campbell [1999] NSWCCA 76 CASES CITED: R v Leete (2001) 125 A Crim R 37 R v Thompson [2000] NSWCCA 362 Veen v The Queen (No 2) (1998) 164 CLR 465 Regina PARTIES: Joseph Allen Bellamy FILE NUMBER(S): CCA 2005/1048 G Rowling (Crown) COUNSEL: H Dhanji (Applicant) S Kavanagh (Crown) SOLICITORS: S O'Connor (Applicant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1262 LOWER COURT JUDICIAL OFFICER: Armitage DCJ IN THE COURT OF CRIMINAL APPEAL 2005/1048 GROVE J SIMPSON J BUDDIN J WEDNESDAY 14 SEPTEMBER 2005 R v JOSEPH ALLEN BELLAMY 1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. The applicant initially pleaded guilty to two offences of aggravated break, enter and steal in the Local Court. He adhered to those pleas when he appeared for sentence. 2 In each instance the circumstance of aggravation was that the applicant committed the offence whilst "in company". The first offence was committed on 19 June 2000 and the second on 4 March 2004. A standard non-parole period of five years applied in relation to the latter offence. The applicant requested that seven further offences, which appeared on a Form 1 document, be taken into account in relation to the second offence. Each offence attracts a maximum penalty of 20 years imprisonment. 3 In respect of the first offence the applicant was sentenced to a non-parole period of 2 years to commence on 16 March 2004, with the total term of imprisonment being 2 years 8 months. In respect of the second offence the applicant was sentenced to a non-parole period of 2 years and 9 months to commence on 16 June 2004, with the total term of imprisonment being 3 years and 8 months. The total effective non-parole period is thus one of 3 years whilst the effective total term is 3 years and 11 months imprisonment. 4 So far as the first offence is concerned, the applicant was one of three offenders who broke into the Gianni Versace store, in Castlereagh Street in the city, at 7 pm on 19 June 2000. They forced entry to the premises through the fire doors by using a jemmy. One of the men, David Lea, stood guard whilst the other two, one of whom was the applicant, kicked in two internal doors and then begun rifling through filing cabinets. The trio left the premises with a large quantity of clothing. As they left the premises, Mr Lea was tackled by a member of the public. He was subsequently arrested at the scene. The other two men dropped the property which they were carrying and escaped. All the property, the wholesale value of which was in excess of $12,000, was recovered. The cost of repairing the damage to the property was estimated to be in excess of $2,000. 5 So far as the second offence was concerned, the applicant and a co-offender forced open the door to the computer laboratory inside the offices of Australian Consolidated Press in the city in the early hours of 4 March 2004. That enabled them to steal 17 laptop computers valued at $42,500. None of that property was recovered. They were seen by an eyewitness to leave the building and enter a taxi. 6 In due course the applicant and his co-offender were arrested. They were placed in a cell at the police station. Their conversations were captured on a listening device. During those conversations the applicant disclosed matters which linked him with each of the matters to which he subsequently pleaded guilty as well as to some of the matters which appeared on the Form 1 document. The matters on the Form 1 included two further offences of aggravated break, enter and steal committed in February 2004. Laptop computers and a video camera worth more than $20,000 were taken during the course of those offences. The other Form 1 matters related to somewhat less serious offences of dishonesty, including possession of car breaking implements, entering premises with intent to commit an indictable offence and goods in custody. 7 The applicant gave evidence during the course of the sentence proceedings. There was also tendered on his behalf a report from a clinical psychologist, Ms Mary Anderson. That material reveals that he has led a sad and troubled life. 8 The applicant was aged 18 at the time of the first offence and 22 at the time of the second. He is the youngest of three siblings in a family in which both parents drank heavily. That led to regular fighting between them. The applicant's childhood was described in a report as being marked by "parental conflict and alcohol abuse, resulting in chronic neglect of his needs". By the age of 11, the applicant was wandering through Kings Cross after school, getting into drugs and returning home late at night. After the Department of Community Services intervened in his case the applicant was eventually placed into the care of his older sisters. By the age of 14, he was dependent upon heroin and began stealing in order to support his habit. The applicant has the on-going support of both his sisters although the eldest, Toni, suffers from schizophrenia. 9 The applicant has a criminal record dating back to 1996 that includes a large number of entries for offences of break, enter and steal. They include an occasion in July 2001 when he was sentenced to 12 months imprisonment with a non-parole period of 3 months for such an offence. In July 2002 he received a sentence of 3 years imprisonment with a non-parole period of 18 months for two offences of aggravated break, enter and steal. He was thus on parole at the time that the second offence, of 4 March 2004, was committed. 10 The sentencing judge quite properly found that this was one of three aggravating features of the applicant's conduct within the meaning of s 21 A(2) of the Crimes (Sentencing Procedure) Act 1999. The applicant's record of previous convictions and the fact that the losses occasioned to the two businesses in question were substantial were treated as the other two matters of aggravation. 11 The sentencing judge also had regard to those mitigating features of the case which were capable of ameliorating the otherwise appropriate penalty: s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge found that the pleas of guilty were entered at the earliest opportunity and accordingly extended to the applicant what his Honour described as "the appropriate discounts". His Honour also accepted that the applicant was genuinely remorseful and that he had "some prospects of rehabilitation". Finally, his Honour found that the offences were not part "of a planned or organised criminal activity". His Honour declined to make a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 12 The first ground of appeal asserts that the sentencing judge erred "in purporting to impose a condition on the applicant's parole". Although this Ground was not ultimately pressed, it is nonetheless necessary to say something about it, especially bearing in mind the complaint which is made in respect of the next Ground of Appeal. Having imposed the sentences to which I earlier referred, his Honour said: "on 15 March 2007 you will be eligible for release on parole, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999 . I advise that on your release you be required to enter into a residential rehabilitation program." 13 The author of the pre-sentence report expressed the view that the applicant would benefit, upon his release from custody, from a period of supervision by the Probation and Parole Service. The author went on to say that "it is requested that any such supervision be conditioned to enter and complete a residential rehabilitation program". 14 The applicant gave evidence that he was prepared to undergo such a program. It is in that context that the sentencing judge's remarks need to be considered. The complaint is that since the sentence imposed was longer than 3 years, the sentencing judge simply had no power to impose the condition concerning the residential rehabilitation program: see generally R v Leete (2001) 125 A Crim R 37. 15 So much may be accepted. However in my view, although the use of the word "advise" was a little ambiguous, it was clearly intended by his Honour that his remarks should operate as a recommendation only. The following exchange between his Honour and counsel for the offender at the sentencing hearing makes that clear: ANDERSON: In relation to special circumstances I would submit that this young man is in dire need of attention when he gets released and that he should have an appropriate period of parole. I think it is very dangerous to put in as a condition of his parole that he must go into a residential rehabilitation (sic). HIS HONOUR: Well number I I'm just wondering am I entitled to do that? ANDERSON: Yes your Honour. Well I've certainly seen it done before that the parole conditions are that he enter into a rehabilitation centre. You can imagine the difficulties. We don't .. HIS HONOUR: Yes well actually what I had in mind was to use the word advise. ANDERSON: I think that is wise and that's what I was going to say. So that the parole officer can take into account the circumstances that might exist at the time when he is released. 16 Recognising that the remarks constituted nothing more than a recommendation, counsel for the applicant as I have said, did not press this Ground. Accordingly, I would reject it. 17 The next ground is closely related to it. It asserts that the sentencing judge erred "in failing to take into account his expectation that the applicant would be released to a full-time residential rehabilitation program in setting the non-parole period". 18 The submission was advanced that the sentencing judge overlooked the fact that entry into such a facility is a form of punishment or "quasi-custody" for which an offender should be given credit: see R v Campbell [1999] NSWCCA 76; R v Thompson [2000] NSWCCA 362. Where an offender has spent time in such a facility prior to sentence, its significance for sentencing purposes can be readily assessed. That is not the present case. The sentencing judge was in no position to know whether the applicant would be even required to enter such a facility. Given that it was no more than a possibility, no occasion arose to have regard to that factor in the sentencing process. As things presently stand, it is a matter for the Parole Board to determine the question of when, and if, the applicant is released to parole and upon what conditions. Moreover it ought to be made perfectly clear that the recommendation which his Honour made is not binding upon the Parole Board. Accordingly I would reject this Ground of Appeal. 19 A further ground of appeal asserts that the applicant has "a justifiable sense of grievance in relation to count 1 as a result of the sentence imposed on the co-offender Lea". David Lea was sentenced on 15 March 2001 to a term of 2 years imprisonment which was wholly suspended. The remarks on sentence in relation to Lea were placed before the sentencing judge. His Honour made the following observations about this aspect of the matter: Although I respectfully agree entirely with the approach taken by his Honour Judge Gibson in dealing with the offender Lea, the fact is that the circumstances there were different. Lea did not enter the actual premises of Gianni Versace. He was there as a lookout. He was not responsible for any of the damage occasioned to the premises. Apart from that he was found by his Honour to be suffering from a psychiatric problem and to be suffering from attention deficit syndrome. Judge Gibson was also impressed by the fact that he was doing a TAFE course. 20 Counsel for the applicant pointed out that Lea had "a bad record as a juvenile" and that he was at the time on parole in respect of a control order. It was submitted that, notwithstanding the features which may have properly distinguished the two cases, they did not justify the extent of the disparity which was apparent in the sentences imposed. Counsel also pointed to the delay which the applicant had suffered before being brought to justice in respect of the first count. 21 It is important to observe that because of the way in which the two sentences were structured, the practical effect of the sentence imposed in respect of count 1 was to extend the applicant's sentence by only three months. In those circumstances, I am of the view that this ground of appeal must also fail. 22 Finally, complaint was made that the sentencing judge erred in taking into account as an aggravating feature the applicant's record of previous convictions. In R v Blair [2005] NSWCCA 78, Grove J (with whom James and Barr JJ) agreed said: I would suggest that it is unfortunate that the legislature has included "a record of previous convictions" in the list of aggravating factors, because it invites, as appears to have happened here, overlooking the qualification in s 21A(4) that a court does not have regard to any such factor as specified if it is contrary to "rule of law" to do so. "Rule of law" is construed to include common law principles: R v Johnson [2004] NSWCCA 76. It is the common law that prior conviction does not operate to aggravate an offence but may deprive an offender of leniency or indicate that it is appropriate to give more weight to factors such as retribution, deterrence or community protection Veen v The Queen (No 2) 1998 164 CLR 465; R v Wickham [2004] NSWCCA 193. (par 53) 23 The sentencing judge in the present case appears to have also overlooked the qualification in s 21A(4). Moreover his Honour did not provide, as he should have, any indication as to what use he had made of the applicant's prior record. 24 As I have indicated earlier, the applicant's criminal history contains a number of previous convictions. More particularly there are a number of convictions for offences of the same or of a similar kind to the present offences. Moreover, as I have said, the applicant was on parole at the time when he committed the second offence. In those circumstances it was appropriate for the sentencing judge to have regard to his antecedent criminal history in accordance with the principles enunciated in Veen (No2) (supra). In short this was a case, particularly in relation to the second offence (and taking into account the matters on the Form 1 document), in which factors such as "retribution, deterrence and protection of society" were properly to be given greater weight than would otherwise be the case. 25 In those circumstances, even assuming that error of the relevant kind has been demonstrated, I am not persuaded that some other sentence was warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912. 26 I propose that leave to appeal be granted but the appeal be dismissed. 27 GROVE J: I agree. 28 SIMPSON J: I also agree. 29 GROVE J: The orders of the Court 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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