New South Wales Court of Criminal Appeal CITATION: Diamantis v R [2005] NSWCCA 433 HEARING DATE(S): 20/09/2005 JUDGMENT DATE: 16 December 2005 JUDGMENT OF: Windeyer J at 1; Hislop J at 2, 31; Smart AJ at 30 DECISION: (a) Windeyer J, Hislop J and Smart AJ: 1. Leave to appeal granted; 2. Appeal dismissed; (b) Hislop J - Related offence: 1. Appeal dismissed. CATCHWORDS: Criminal law - Break enter and steal in circumstances of aggravation - Standard non parole period inapplicable - Sentence - Related offence - Period of driving disqualification. Crimes Act 1900 - s 112(2) LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 - s 166 R v Chebat [2004] NSWCCA 211 R v P [2004] NSWCCA 218 R v Qutami [2001] NSWCCA 353 CASES CITED: R v Simpson (2001) 53 NSWLR 704 R v Tait (1979) 46 FLR 386 R v Tobar [2004] NSWCCA 391 R v Way [2004] 60 NSWLR 168 Appellant - Lucas Diamantis PARTIES: Respondent - Regina FILE NUMBER(S): CCA 2005/1101 Appellant - Ms A Francis COUNSEL: Respondent - Ms J Dwyer Appellant - Legal Aid Commission of New South Wales SOLICITORS: Respondent - Office of the Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/1049 LOWER COURT JUDICIAL OFFICER: McGuire DCJ - 12 - IN THE COURT OF CRIMINAL APPEAL 2005/1101 WINDEYER J HISLOP J SMART AJ 16 December 2005 Lucas DIAMANTIS v R Judgment 1 WINDEYER J: I agree with Hislop J. HISLOP J: Introduction 2 The applicant pleaded guilty to the offence of break, enter and steal in circumstances of aggravation (in company) contrary to the Crimes Act 1900 s 112(2). The maximum penalty for such an offence is 20 years imprisonment. 3 The facts of the offence, put shortly, were that at about 12.20am on 15 August 2003 the applicant, in company with another male person, broke into a shop in York Street Sydney and stole a quantity of computer equipment. The applicant and his companion departed the scene of the crime in a stolen van. 4 On 17 June 2004 the applicant was sentenced for that offence in the District Court to imprisonment for a non parole period of 4 years commencing on 15 August 2003 with the balance of the sentence of 2 years to expire on 14 August 2009. 5 In sentencing the applicant the Court took into account six offences on a Form 1 under the Crimes (Sentencing Procedure) Act 1999 being two counts of receive stolen property, two counts of make false statement and two counts of dispose of stolen property. 6 The applicant, who was born in April 1969, has sought leave to appeal against that sentence. The grounds of appeal are: 1. His Honour fell into error by determining that the standard non parole period applied in the applicant's case. 2. His Honour had insufficient regard to the applicant's subjective case. 3. His Honour did not take into account the finding of special circumstances in determining the non parole period. Ground One – His Honour fell into error in determining the standard non parole period applied in the applicant's case. 7 In R v Way [2004] 60 NSWLR 168 this Court held: The standard non parole period provided for in the Table to Division 1A was intended to apply to sentences imposed after conviction following trial, and not to sentences imposed where a plea of guilty has been entered – R v Tobar [2004] NSWCCA 391 at [30]. 8 His Honour, in his Remarks on Sentence, said: The aggravated break, enter and steal attracts the provisions of s 54 of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 . A standard non parole period of 5 years is provided for the offender's offence. The question arises as to whether there should be some departure from that standard non parole period having regard to the aggravating, mitigating and other factors in sentencing. 9 His Honour concluded: I am prepared to depart from the standard minimum parole period. The offender is sentenced to imprisonment by way of a non parole period of four years. His Honour was not referred to the then recent decision in Way. 10 The applicant submits, and the Crown concedes, his Honour erred in holding that the standard non parole period applied to the applicant's offence. I find error has been demonstrated in this regard. Ground Two – His Honour had insufficient regard to the applicant's subjective case. 11 His Honour made the following findings: (a) Of concern is his serious criminal history. There is little point in me cataloguing the various entries on his record save to remark that his offending behaviour apparently commenced some twenty - odd years ago. He has been before courts on numerous occasions and has been dealt with by way of a variety of penalties, in particular he has received a number of lengthy custodial sentences for offences of a like nature to that which brings him before me. The criminal history included a sentence for illegal use of a motor vehicle and break enter and steal in circumstances of special aggravation which resulted in a sentence of 7 years and 6 months with a minimum term of 5 years. (b) The subject offence was committed whilst the applicant was subject to parole. He was also on bail in relation to the matters contained in the Form 1. (c) The incidence of breaking into properties is ever increasing and gives rise to indignation and anger in the community. The element of deterrence looms large. Sentencing officers have a responsibility to impose meaningful sentences, in particular in the case of repeat offenders such as the applicant, offenders who commit crimes while subject to bail and to parole. The community is entitled to see that justice is done. In looking at the objective seriousness of the offence I do not believe it could be categorised as being of the most heinous type of break enter and steal in company – that's not to denigrate the seriousness of the crime as a substantial amount of goods were taken, some of which were damaged and rendered useless. (d) The evidence simply does not allow me to make a finding one way or the other as to whether it was part of planned or organised criminal activity. (e) The plea of guilty was entered on the day when the trial was to commence. The applicant is entitled to some consideration for the utilitarian value of the plea albeit the consideration is not substantial having regard to its lateness. (f) The pre sentence report provides no explanation for the offender's conduct by way of such commonly found matters as a deprived childhood and youth, some physical or mental defect or disability. (He) had the benefit of a supportive family environment with the continuing support of his parents during his adult life. The pre sentence report and the psychologist report contain a history of his long standing drug use, drug addiction and drug abuse. (g) The applicant did not give evidence on sentence. The psychiatric report which was tendered contained an opinion that the applicant had expressed remorse. I consider the psychiatric report to be of extremely limited value. Similarly a letter written purportedly by the applicant is to be afforded little weight. His plea does not impress as a reflection of remorse having regard to the late stage when he acknowledged his guilt. (h) There does appear to be unanimity in the various documents before me that the offender has expressed an intention to reform and rehabilitate himself. Not having seen or heard him in the witness box I had no opportunity to gauge or assess the worth of such opinions and expressions of intention. He certainly did not do much, if anything, about seeking to rehabilitate himself before he was caught for the offences which concern me…. I am prepared to find that he has prospects of rehabilitation, how good they are I simply do not know. He has attended upon various courses within the prison system and there is a supportive report from the drug and alcohol worker referred to. He has apparently expressed his willingness to enter a residential rehabilitation program. 12 It is submitted for the applicant that his Honour had insufficient regard to certain matters justifying a reduction in the non parole period and failed to have regard to additional mitigating factors namely: (a) The applicant had disclosed a history of sexual abuse which began when he was in secondary school and was coincident with his descent into drug use. (b) He had expressed considerable remorse to those that prepared the reports a fact that his Honour expressly rejected on the basis that in effect reports of this nature were self serving and the applicant had not given evidence. (c) He had made an attempt on his own life by hanging after he was released from custody and was discovered by his mother. (d) He had been prescribed Zoloft approximately five years earlier for anxiety and depression. (e) He had been successful on the methadone program whilst in custody and was hopeful about being drug free by July 2004. 13 As to the "additional mitigating factors": (a) The history of sexual abuse was referred to in the report of the psychologist. It was based on the self report by the applicant. The psychologist concluded the applicant "is yet to come to terms with his experience of sexual abuse. His clinical presentation suggests this experience is causing him psychological difficulty". The applicant was recorded in the report as stating it had no effect on his behaviour. (b) The psychologist's report recorded a self report by the applicant that he attempted suicide two years ago and approximately five years ago had been prescribed Zoloft (for anxiety and depression). The report did not go beyond recording these matters as matters of history. (c) There was reference to the applicant being on a methadone program. (d) The psychologist's report stated the applicant was "remorseful". His Honour considered the psychologist's report was of extremely limited value. In particular he considered the contrived statement of remorse was of little weight. (e) Counsel for the applicant submitted at the sentencing hearing that the "basic thrust" of the psychologist's report was that the applicant "doesn't have any psychiatric or psychological disorder and his only real problem is his substance dependence disorder". 14 Whilst his Honour did not individually refer to each of those matters he did specifically state he had considered the material in the pre sentence report, a report from an alcohol and drug counsellor, a letter from St Vincent de Paul, the psychologist's report and the letter which purported to be written by the applicant. 15 His Honour was sceptical about the weight to be attached to the reports and the letter written by the applicant. As his Honour stated, with justification, "Not having heard or seen (the applicant) in the witness box I have no opportunity to gauge or assess the worth of such opinions and expressions of intention. 16 As Smart AJ observed in R v Qutami [2001] NSWCCA 353: [58] … In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements. [59] There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements. 17 In my opinion it has not been established his Honour failed to have sufficient regard to the applicant's subjective case. The weight assigned to the various factors is a matter for the assessment of the trial Judge in the exercise of his sentencing discretion. Error in this regard has not been demonstrated. Ground Three – His Honour did not take into account the finding of special circumstances in determining the non parole period. 18 His Honour stated: Nevertheless, I will assume, despite my scepticism, that he does have at least a present intention of seeking to address his problem and I will deal with this in finding special circumstances ….. 19 Consistently with those comments his Honour later stated: I have varied the prima facie ratio between the non parole period and the parole period in order to facilitate the offender's rehabilitation. 20 It is therefore clear that his Honour did in fact take into account the finding of special circumstances in determining the non parole period. 21 However in written submissions this ground was put somewhat differently it being submitted that "What his Honour appears to have done is to determine the non parole period and then impose a balance of term which exceeds one third of that term." Such an approach would be contrary to principle – R v P [2004] NSWCCA 218. 22 In R v Chebat [2004] NSWCCA 211 at [23] this Court said: The applicant's submission carries with it the inference that the Judge believed that the section required him to increase the sentence for the purposes of accommodating the applicant's rehabilitation by the finding of special circumstances. Such proposition is so inconsistent with general sentencing theory and with the interpretation of a similarly worded provision in the former Sentencing Act that it should not be attributed to a sentencing Judge without it being overwhelmingly apparent that this was the approach adopted. This observation is apposite in this case. 23 In my opinion it has not been established his Honour did not take into account the finding of special circumstances in determining the non parole period nor that he did so in a manner contrary to principle. Conclusions 24 As earlier recorded I have concluded an error arose in respect of his Honour's application of the standard non parole period. 25 However his Honour proceeded to exercise the sentencing discretion applying established sentencing principles and having regard to all relevant considerations. 26 His Honour also took into account the matters on the Form 1. As his Honour observed these were significant offences albeit less serious than the principal offence. 27 An appellate Court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing Judge was in error – R v Tait (1979) 46 FLR 386 at 388, and then only if it forms the positive opinion that some other sentence is warranted in law and should have been passed – R v Simpson (2001) 53 NSWLR 704 at [79]. 28 The sentence in this case, when regard is had to all the circumstances and in particular the applicant's criminal antecedents and the matters taken into account on the Form 1, is not such as to cause me to conclude that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. Orders 29 I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 30 SMART AJ: I agree with the judgment of Hislop J. IN THE COURT OF CRIMINAL APPEAL 2005/1101 HISLOP J 16 December 2005 Regina v Lucas DIAMANTIS JUDGMENT AS TO THE RELATED OFFENCES 31 HISLOP J: The applicant also pleaded guilty before the sentencing Judge to two related offences. The proceedings in respect of those related offences came before the District Court pursuant to the Criminal Procedure Act 1986 s 166. 32 The related offences were: (a) Drive a motor vehicle in a manner dangerous to the public contrary to the Road Transport (Safety and Traffic Management) Act 1999 s 42(2). The maximum penalty for this offence is a $2,200 fine or imprisonment for 9 months or both. The Road Transport (General) Act 1999 s 25 provides that a person convicted of this offence is automatically disqualified for a period of 3 years from holding a drivers licence or if the court thinks fit to a shorter period (but not shorter than 12 months) or longer period of disqualification; and (b) drive conveyance taken without consent of owner contrary to Crimes Act 1900 s 154A(1)(b). The maximum penalty for this offence is 2 years imprisonment and/or a $5,500 fine. 33 In respect of the offence under s 42(2) the applicant was fined $750 and disqualified from driving for 6 years commencing on 15 August 2003. In respect of the second offence he was sentenced to imprisonment for a fixed term of 9 months commencing on 15 August 2003. 34 The applicant has sought to appeal on the ground that the period of disqualification imposed in respect of the offence of dangerous driving contrary to s 42(2) is manifestly excessive. 35 The facts of the offence were agreed by the parties, as follows: The vehicle has turned south into Palmer Street where police have activated warning devices to cause the vehicle to stop. The vehicle has failed to yield and then turned right into Burton Street. Police have then informed police radio that they were in pursuit of that vehicle. The vehicle then turned north into Crown Street where it has overtaken another fully marked HWP vehicle in lane one of one crossing over unbroken lines to do so. The vehicle has then turned left into Liverpool Street and continued to near the intersection of Yurong Street where police have momentarily lost sight of the vehicle. Shortly thereafter they have located the vehicle again, which was travelling west in Francis Street, Sydney, contrary to the flow of traffic. Francis Street being a one way street, controlled by signage. At the intersection of College Street and Francis Street, vehicle VQV819 has continued west, not giving way at the terminating street. At this point it has collided with the front nearside of a stationary fully marked police sedan, which was attempting to travel east in Francis Street. This has caused damage to the front nearside of the police vehicle. The vehicle has then turned right into College Street and travelled north at a speed estimated to be in excess of the signposted 50kmh area. It has then turned left into Park Street, without indicating. Police estimate the speed of the vehicle to be in excess of 50kmh speed limited apportioned to the length of Park Street. The vehicle continued west into Park Street, and at the intersection of Elizabeth Street it has turned left, failing to indicate again. The vehicle has travelled south in Elizabeth Street at a speed estimated to be in excess of the posted 50kmh limit. At the intersection of Bathurst Street which was controlled by traffic control lights the vehicle has continued through a red traffic light at a speed estimated to be approximately 70kmh, narrowly missing a caged police truck at the intersection. Police have continued to follow the vehicle south in Elizabeth Street. At the intersection of Liverpool Street, the vehicle has careered right into Liverpool Street from lane 2 of three contrary to a red traffic control signal facing the vehicle. At this point the vehicle has lost traction with the roadway, skidded and collided with a lightpole situated on the southwest curb alignment. 36 The applicant submitted the period of disqualification was excessive. It was also submitted, and appears to have been the case, that the applicant's driving record was not tendered on the sentence hearing. It was submitted his Honour erred in not having regard to that record. 37 The applicant was first licensed in May 1986. His driving record comprises the following offences: exceed speed limit by more than 15 km/h but not more than 30 km/h (x 3), exceed speed limit by not more than 15 km/h, not give proper or timely signal, not make turn in prescribed manner, unlicensed rider, unauthorised carriage of pillion passenger, use motor vehicle without consent of owner (1991), drive under the influence (1991), drive whilst disqualified (1994) and disobey traffic lights. 38 His Honour gave no express reasons for his determination of the period of disqualification. As it appears he did not have the applicant's driving record before him it would seem the period of disqualification was directly referrable to the manner of driving on 15 August 2003. 39 That driving was clearly extremely dangerous and put police and members of the public, as well as the applicant and his companion, at considerable risk of injury or death. The conduct was such as to require significant punishment concerning any right to drive. The applicant's driving record is not such as to justify any reduction of the penalty that was otherwise appropriate. 40 His Honour did not impose any term of imprisonment in respect of this offence and the monetary penalty was not great. The disqualification was within the range open to his Honour and it will be at least four years before the applicant will have occasion to drive. I would not disturb his Honour's assessment of the period of disqualification. 41 Accordingly I would dismiss the appeal as to the related offence. Order Appeal dismissed. ********** 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.