New South Wales Court of Criminal Appeal CITATION: R v Troy Rodney Hardes [2007] NSWCCA 82 HEARING DATE(S): 22 March 2007 JUDGMENT DATE: 28 March 2007 JUDGMENT OF: Simpson J at 1; Barr J at 2; Howie J at 20 DECISION: 1. Allow the appeal and quash the sentences appealed from. 2. For each of the 2003 offence and the offences in counts 2, 3 and 4, impose imprisonment for a fixed term of six months commencing on 6 February 2006 and expiring on 5 August 2006. Take into account for the 2003 offence the matter listed in the schedule. 3. For each of the offences in 5, 6 and 7 impose imprisonment for a fixed term of six months commencing on 6 May 2006 and expiring on 5 November 2006. 4. For each of the offences in count 8, 9 and 10 impose imprisonment for a fixed term of six months commencing on 6 August 2006 and expiring on 5 February 2007. 5. For the offence charged in the first count, and taking into account the thirty-eight other matters in the schedule, impose imprisonment for a non-parole period of two years, commencing on 6 February 2007, and a balance of term of three years. The reason for the imposition of a balance of term exceeding one-third of the non-parole period is the special need of the respondent for the extended support of the officers of the Probation and Parole Service in his efforts to rid himself of his addiction to illegal drugs and the criminal consequences thereof. 6. Order that the respondent pay compensation in the sum of $4,500.00. 7. Declare that the first day on which the respondent will be eligible for release on parole will be 5 February 2009. CATCHWORDS: CRIMINAL LAW - sentencing - Crown appeal - whether sentences inadequate Attorney-General's Application [No 1]; R v Ponfield [1999] NSWCCA 435 R v Ellis (1986) 6 NSWLR 603 CASES CITED: Bugmy v The Queen (1990) 169 CLR 525 The Queen v Osenkowski (1982) 30 SASR 212 R v Allpass (1993) 72 A Crim R 561 Dinsdale v The Queen [2000] HCA 54 PARTIES: Regina, Troy Rodney Hardes FILE NUMBER(S): CCA 2006/2759 COUNSEL: R A Herps J S Stratton SC SOLICITORS: S Kavanah S E O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/31/0327 LOWER COURT JUDICIAL OFFICER: Taylor DCJ IN THE COURT OF CRIMINAL APPEAL 2006/2759 SIMPSON J BARR J HOWIE J 28 MARCH 2007 REGINA v TROY RODNEY HARDES JUDGMENT 1 SIMPSON J: I agree with Barr J. 2 BARR J: This is an appeal by the Director of Public Prosecutions against what is said to be the inadequacy of a series of sentences imposed in the District Court upon the respondent, Troy Rodney Hardes. 3 The respondent is a man thirty-three years old at the time of sentence. When he was fifteen years old his parents separated and he went to live with his father. His father died and he was left homeless. On the streets, he was introduced to illegal drugs. He had no skill and no job and stole to get by. His first gaol term, for stealing, began when he was eighteen years old. Between then and a time shortly before the present sentences were imposed he lived a more or less routine life, stealing and using the proceeds to buy heroin and otherwise survive. On occasions he was caught and sent to prison. Over that period of fifteen or so years he spent seven or eight years in custody. Nothing that happened to him inside or outside prison made any impression on the life he was leading. He told the sentencing judge that it was like a revolving door. 4 Not long before he was sentenced for the current matters the respondent was ordered to serve a series of sentences whose non-parole periods expired in August 2005. Upon his release he took up his old activities. Between the end of November 2005 and the beginning of February 2006 he broke and entered domestic premises in Newcastle and stole on no fewer than forty-eight occasions. As he told the sentencing judge, his technique was simple. He would walk up to a house and knock at the door. If it was answered he would make up some story and go away. If it was not he would break in and take what he could find. When he was caught he admitted these matters to the police. He accompanied them to the premises he had broken into and told them things they would not otherwise have known. When he was taken to court he told the magistrate that he intended to plead guilty to all the charges. So he came before the District Court. 5 There were ten counts in the document of committal. The first was the most serious. The respondent broke into a house in Mayfield and stole a large amount of jewellery, work samples, watches and electrical equipment. The total value of the property stolen was a little under $20,000.00. He was arrested after DNA extracted from samples taken from the scene was found to match his. The circumstances giving rise to the other nine counts were of the same kind. The value of goods stolen was considerable. For each of the second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth counts his Honour sentenced the respondent to imprisonment for a fixed term of six months. The sentences were staggered so that the first three commenced on 6 February, the next three on 6 March and the last three on 6 April 2006. For the offence in the first count, and taking into account the thirty-eight matters listed in the schedule, his Honour sentenced the respondent to a non-parole period of one year and six months, accumulated upon the last of the fixed terms, and a balance of sentence of one year. The resulting overall sentence was of three years and two months, comprising a non-parole period of two years and two months and a balance of term of one year. His Honour ordered the payment of compensation. 6 At the same time his Honour dealt with an offence committed by the respondent on 20 December 2003. It was part of a much earlier crop of offences and it did not appear why it had not been dealt with on one of the many earlier occasions the respondent had been before the courts. His Honour regarded it as stale and sentenced the respondent to a fixed term of imprisonment of six months concurrent with the first three bracketed sentences I have mentioned. 7 The respondent gave evidence. He told the sentencing judge about his history with drugs and crime and said that he was sick of it. He told how he had volunteered having committed some of the offences, enabling the police to charge him with crimes which would otherwise have remained unsolved. He said that he had always used illegal drugs in gaol but had not done so during his latest period of imprisonment. He was free of drugs for the first time in his adult life. He had been given the job of sweeper, one normally given only to trusted inmates. He had a girlfriend who visited him regularly and brought his daughter to see him. He was participating in drug and alcohol courses for the first time. He had always resisted taking on a Methadone program but had this time committed himself to such a program. He expected to serve a period of custody and then, under the supervision of the Probation and Parole Service, to enter a full-time drug release program. He said that he was serving his sentence on protection, having refused requests of other inmates to have his visitors bring drugs into the gaol. 8 His Honour said this - There has never been a period, till recently, when he was off drugs, even in gaol. He has a daughter and presently a person he describes as his "girlfriend". His adult life has revolved around drugs and crime. It would seem that at this stage, for the first time in his adult life, he is trying to make some progress. He is accepted as a sweeper in gaol and he has entered the methadone program and he has been drug free for some months, that is since he entered custody in February. He has done drug and alcohol courses in gaol. He said that the methadone seems to be working. He also accepts that he may have to go into fulltime rehabilitation when he leaves gaol. Presently he is serving his sentence on protection, he having been approached to arrange the importation of drugs into the prison system. He has resisted that and as a result of threats he now is likely to spend the rest of his time in custody in protection. He is entitled to have that taken into account in assessing the length of sentence. He faces a very heavy sentence but he pleaded guilty. Some of the cases were quite strong against him, with the fingerprint evidence but he did drive around with police, co-operated and assisted them in trying to bring before the Court all the matters that he was involved in. There is a utilitarian discount in the plea and it does show some remorse, having regard to the change in attitude that is developing, what his solicitor called and understanding that he is at the crossroads. 9 The Crown submitted that the resulting sentence was so low as to demand the intervention of this Court. The maximum penalty on each count was imprisonment for fourteen years. It was submitted that given the serious nature of the offences against the background of the respondent's long history of like offences a substantial custodial sentence was called for, even giving proper weight to the fact that the respondent himself disclosed his commission of some of the offences and the promise he was holding out of rehabilitation. 10 The principal features by which the seriousness of the offences was to be assessed were these - (a) the seriousness of offences of that kind, as evidenced by the maximum penalty of fourteen years' imprisonment; (b) the multiplicity of offences; (c) the substantial value of the goods stolen; (d) that the respondent was on conditional liberty the whole time; and (e) that the respondent had a prior record for offences of the same kind: see Attorney-General's Application [No 1] ; R v Ponfield [1999] NSWCCA 435, particularly at [48] sub paras [vi], [viii], [i] and [iii]. 11 His Honour was obliged to mitigate the sentences imposed to give effect to these matters - (a) the satisfaction that the respondent's claim to have changed his attitude was genuine; (b) the early pleas of guilty, which his Honour assessed as worth a twenty-five per cent reduction for their utilitarian value alone; and (c) the respondent's remorse, as evidenced by the pleas of guilty and his co-operation with police, which extended to the disclosure of his participation in offences the police were unlikely otherwise to be able to establish: R v Ellis (1986) 6 NSWLR 603. 12 The judge was entitled to extend the balance of the total effective term at the expense of the non-parole period in order to provide for an extended period of parole in view of the respondent's peculiar need for support consequent upon the difficult course of rehabilitation he had decided upon. Even then, however, the ultimate non-parole period had to reflect the objective seriousness of the offences: Bugmy v The Queen (1990) 169 CLR 525. 13 Counsel for the respondent reminded the Court that Crown appeals should be rare and that sentences should be set aside only where a clear error of principle has been identified. Counsel referred to the evidence of rehabilitation and the well-known judgment of King CJ in The Queen v Osenkowski (1982) 30 SASR 212 at 212-3. The submission was that despite the seriousness of the offences this was an occasion for the extension of mercy. The Court was reminded of its lively discretion to refuse to intervene even where error is shown: R v Allpass (1993) 72 A Crim R 561. 14 It seems to me that, even after the substantial allowance his Honour was entitled to make for an extended period of time on parole, the sentence imposed on the first count and the resulting total effective sentence was, by reference to the factors I have identified, inadequate to reflect the objective seriousness of the offences. 15 Counsel for the respondent read on the appeal an affidavit of the respondent. In it the respondent confirmed his determination to change his life and his appreciation that doing so would be hard and would take a long time. He said that he had already participated in a number of courses and was enrolled for others. He had attended drug and alcohol programs once each week. He had remained on the Methadone program, maintaining a steady dose, and planned to remain on that program. He had been free from illicit drugs since his incarceration and had committed no offences. He was on a course to move to a C2 classification, probably in April 2007 and was looking forward to a transfer to a place which would allow for more frequent visits of his girlfriend and his daughter. 16 It is encouraging that the promise that was held out at the time of sentencing continues to be one in which the Court can have confidence. The material put forward by the respondent in his affidavit is impressive but does not persuade me that the Court ought to exercise its discretion so as not to interfere with the sentences. 17 When this Court quashes a sentence and imposes a greater one following a successful Crown appeal, that sentence is generally towards the lower end of the available range of sentence: Dinsdale v The Queen [2000] HCA 54. 18 I propose the following orders - 1. Allow the appeal and quash the sentences appealed from. 2. For each of the 2003 offence and the offences in counts 2, 3 and 4, impose imprisonment for a fixed term of six months commencing on 6 February 2006 and expiring on 5 August 2006. In doing so I take into account for the 2003 offence the matter listed in the schedule. 3. For each of the offences in 5, 6 and 7 impose imprisonment for a fixed term of six months commencing on 6 May 2006 and expiring on 5 November 2006. 4. For each of the offences in count 8, 9 and 10 impose imprisonment for a fixed term of six months commencing on 6 August 2006 and expiring on 5 February 2007. 5. For the offence charged in the first count, and taking into account the thirty-eight other matters in the schedule, impose imprisonment for a non-parole period of two years, commencing on 6 February 2007, and a balance of term of three years. The reason for the imposition of a balance of term exceeding one-third of the non-parole period is the special need of the respondent for the extended support of the officers of the Probation and Parole Service in his efforts to rid himself of his addiction to illegal drugs and the criminal consequences thereof. 6. Order that the respondent pay compensation in the sum of $4,500.00. 7. Declare that the first day on which the respondent will be eligible for release on parole will be 5 February 2009. 19 My intention in so arranging these sentences is to achieve an effective overall sentence of six years, equally divided between non-parole and parole periods. 20 HOWIE J: I agree with Barr 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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