New South Wales Court of Criminal Appeal CITATION: Campbell v Regina [2007] NSWCCA 137 HEARING DATE(S): 16 March 2007 JUDGMENT DATE: 24 May 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hislop J at 11 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: Criminal law - Sentence - Ellis discount - Sentence not manifestly excessive. LEGISLATION CITED: Crimes Act 1900 - ss 112(1), 188(1) Criminal Appeal Act 1912 - s 6(3) Dinsdale v The Queen (2000) 202 CLR 321 Harris v R [2007] NSWCCA 130 Markarian v R (2005) 215 ALR 213 R v Bloomfield (1998) 44 NSWLR 734 CASES CITED: R v Dodd (1991) 57 A Crim R 349 R v Ellis (1986) 6 NSWLR 603 R v Simpson (2001) 53 NSWLR 704 Ryan v The Queen (2001) 206 CLR 267 Veen v R (No2) (1987-1988) 164 CLR 465 Wong v R (2001) 207 CLR 584 PARTIES: Applicant - Neil Andrew Raymond Campbell Respondent - Regina FILE NUMBER(S): CCA 2006/2745 COUNSEL: Applicant - Ms C. Loukas Respondent - Ms N. Noman SOLICITORS: Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/1055 LOWER COURT JUDICIAL OFFICER: Freeman DCJ LOWER COURT DATE OF DECISION: 9 February 2006 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/2745 McCLELLAN CJ at CL HULME J HISLOP J 24 May 2007 Neil Andrew Raymond CAMPBELL v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HULME J: I have had the advantage of reading the reasons for judgment of, and the orders proposed by, Hislop J. I agree with his Honour in both areas but wish to add the following. 3 The sentence under appeal imposed for count 1 was shorter than, but otherwise wholly concurrent with that imposed on count 2. The sentences under appeal imposed for count 4, 5, 6 and 7 were shorter than, but otherwise wholly concurrent with that imposed for count 3. Effectively, the Applicant received no punishment for offences 1, 4, 5, 6, and 7, five of the seven with which he was charged. 4 To the extent of 18 months – more than half the non-parole period of each- the sentences imposed for counts 2 and 3 were concurrent. 5 Considerations of totality of course required that the sentences, or the non-parole periods, for the 7 offences not simply be accumulated and that there be a degree of concurrency. However, a degree of concurrency which has the results I have described is completely unjustified. It sends a clear message to those members of the criminal community who chose to live by breaking and entering and stealing or the like that once they have committed a few offences, they can continue offending with virtual impunity so far as further punishment is concerned. 6 Furthermore, a consideration of the Applicant's record, some details of which I set out below, show that he is a recidivist who has not been deterred by the previous sentences, again mainly concurrent, that have been imposed upon him. If proper regard is had to the considerations of general deterrence, personal deterrence, retribution - the community's entitlement to feel that justice, including justice to the community and the Applicant's victims, has been done - and most obviously to the protection of the community (not forgetting the limitations in that regard - see Veen v R (No2) (1987-1988) 164 CLR 465 at 477) – the sentence on the Applicant can only be regarded as extraordinarily lenient. Perhaps fortunately for the Applicant, the Crown has not appealed. 7 The Applicant's antecedent's report shows the following. He was born on 24 January 1974. He was first dealt with by, at least an adult's court, in June 1991. Between then and May 2002, and putting aside appeals, he was dealt with by New South Wales courts on 23 separate occasions for 19 offences of break, enter and steal, 8 other offences of dishonesty, 13 offences involving drugs and 28 other offences some of which were minor but many of which were not. (In March 2003 he was also dealt with in Victoria for 5 offences.) 8 His history of breaking, entering and stealing offences and the sentences imposed are as follows:- 25/06/91 3 counts On each charge a 12 month recognisance, concurrent with the others. 14/09/95 4 counts On each charge 6 months periodic detention, later converted to full time custody. The terms again seem to have been concurrent. On 1 count imprisonment for a fixed term of 6 months commencing on 22/3/2000. 16/08/99 7 counts On 5 charges, imprisonment for 18 months including a minimum term of 6 months commencing on 22.3.2000. All sentences concurrent. On 1 count imprisonment for a fixed term of 12 months commencing 26/3/99. 07/10/99 2 counts On each charge imprisonment for a fixed term of 6 months commencing 7.10.99. 09/11/99 2 counts On each charge imprisonment for a fixed term of 12 months commencing 22.3.99. 12/10/99 1 count Imprisonment for 9 months commencing 12.10.99. 9 Although I do not find it necessary to detail it, there was also a deal of concurrency between the sentences for breaking, entering and stealing and the sentences imposed for the other offences. 10 On 14 May last, this Court delivered judgment in a matter of Harris v R [2007] NSWCCA 130. In light of that decision, it is to be hoped that the pattern apparent in the above table, reinforced in the sentences under appeal, is never repeated. 11 HISLOP J: The applicant pleaded guilty to 6 counts of break enter and steal contrary to the Crimes Act 1900 s 112(1) (Counts1 – 4, 6 and 7) and 1 count of receiving/ disposing of stolen property contrary to the Crimes Act 1900 s 188(1), (Count 5). The maximum penalty for each of the offences under s 112(1) is 14 years and, for the offence under s 188(1), 10 years. 12 In addition to those offences the applicant asked that the court take into account 18 items on a Form 1. Those items relate to a break enter and steal committed in July 2002, and receiving and disposing of stolen goods, making false statements and the like. 13 On 9 February 2006 the applicant was sentenced in the District Court as follows: Count 1: imprisonment for a non-parole period of 2 years, to commence on 21 June 2005 and expire on 20 June 2007, with a total term of 3 years, to expire on 20 June 2008. Count 2: imprisonment for a non-parole period of 2yrs and 6 months, to commence on 21 June 2005 and to expire on 20 December 2007, with a total term of 3 years and 6 months, to expire on 20 December 2008. Count 3 (including the Form 1 offences): imprisonment for a non-parole period of 2 years and 6 months, to commence on 21 June 2006 and to expire on 20 December 2008, with a total term of 4 years and 6 months to expire on 20 December 2010. Counts 4, 6 and 7: imprisonment for a non-parole period of 2 years and 6 months, to commence on 21 June 2006 and to expire on 20 December 2008, with a total term of 3 years 6 months, to expire on 20 December 2009. Count 5: imprisonment for a fixed term of 18 months, to commence on 21 June 2006 and to expire on 20 December 2007. The overall sentence was thus imprisonment for 5 years 6 months which included a non-parole period of 3 years 6 months. 14 His Honour briefly stated the circumstances of the offences in the following terms: … the counts cover the period from 3 February 2005 to 16 May 2005. In the case of the breaking and entering, much the same method was employed by the offender on each occasion. He would walk down a suburban street, select a house, knock on the door to see whether anybody was home, and having established there was an absence of occupants he would break a window or a glass door, obtain entry by that method, then go through the house, selecting the property to be stolen, and then decamp … He tended to steal cameras, computer monitors, playstations, some jewellery. In other words portable and expensive items. In each case, within a very short time he went to some pawn shop or other, and declaring the items to be his, falsely, he then disposed of them. 15 The applicant has sought leave to appeal against sentence on the grounds: (1) His Honour erred in giving no or insufficient weight to the factor of voluntary disclosure of guilt, as per R v Ellis (1986) 6 NSWLR 603. (2) His Honour's determination of the appropriate sentence was manifestly excessive. Ground 1- His Honour erred in giving no or insufficient weight to the fact of voluntary disclosure of guilt, as per R v Ellis (1986) 6 NSWLR 603 16 In R v Ellis at 604 this Court held: When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty is a well-recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned. 17 In R v Dodd (1991) 57 A Crim R 349 at [351] this court held: Furthermore, (an offender) is entitled to added leniency because of his voluntary disclosure of guilt, which would otherwise have remained undetected. 18 In Ryan v The Queen (2001) 206 CLR 267 at 272 - 273 McHugh J said: The statement in Ellis that "the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency" is a statement of a general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case. 19 During the sentencing proceedings the applicant's legal representative said: "There has been a plea of guilty entered at the earliest opportunity in the Magistrates Court following on a very frank and cooperative meeting with the police during which he has demonstrated contrition and has disclosed matters which the Crown accepts some of which were unknown to the police officers". 20 His Honour did not refer to such disclosures in his remarks on sentence and gave no express indication he had given an Ellis discount. The applicant submitted that his Honour erred by not giving any or any sufficient weight to the voluntary disclosure of guilt. 21 The disclosures relied upon by the applicant occurred during an electronically recorded interview on 21 June 2005. At the commencement of the interview the applicant was informed he was to be asked questions about a series of break and enters which the police were investigating. Initially the applicant, in response to questions, gave police a version as to how he had come by various goods. The questioning police officer then asked a second officer to "Grab those pawn slips", whereupon the applicant said "I can tell you what busts I've done and make it a lot easier for you". He then disclosed details of the subject break enter and steal counts. 22 At the time of the interview each of the subject offences had been reported to the police. This included the break enter and steal at Newtown (Count 4) of which the questioning police officer was unaware at the time. Thus this was not a case where, but for the applicant's disclosure, the offences, or any of them, would have remained undetected. 23 The applicant's modus operandi was to pawn the stolen goods promptly and when pawning the goods to produce evidence of his true identity and sign the pawn slips in his own name. The police had obtained the pawn slips in the applicant's name signed by him. Thus the evidence available to the police would have established at least offences of receiving and disposing of stolen goods which offences carried significant penalties. In the case of two of the break enter and steal offences the applicant had left his fingerprints at the site of the break in. In those circumstances establishing the applicant's guilt in respect of those offences should not have posed any difficulty. As to the remaining offences there was a very strong possibility that, even without the applicant's admissions his guilt would have been established. 24 In my opinion, the facts and circumstances of this case are such that the disclosures which the applicant made were not of such significance as to warrant an added element of leniency in quantifying the sentences. Ground 2 – His Honours determination of the appropriate sentence was manifestly excessive. 25 The applicant was born on 24 January 1974. He had a troubled destabilising adolescence. He was showing signs of anti-authoritarian behaviour during his schooling and felt an outcast at home. He left home at the age of 14 and thereafter lived for a while on the streets and in refuges. He is now married and has 2 very young children one of whom was born prematurely and required constant medical attention. The children are in the care of their mother. The applicant said he had been a heroin addict for a time but had not used heroin or methadone since 2000. He had used cannabis daily for many years right up until he went into custody in June 2005. He denied that the subject offences were committed for the purpose of financing his drug habit and said he got his cannabis free from a friend. He claimed his motivation to steal was the need to sustain his family. 26 His Honour found: The subject offences, though capable of being described as common or garden-type break enter and steal offences were serious and such as to have had a significant emotional impact upon the victims. The totality of the criminality involved was considerable. Each offence must be regarded as part of a series of criminal offences; The value of the property taken was considerable though there was no element of vandalism or significant damage; The applicant's first recorded criminal offence occurred when he was aged 16. Thereafter he has a long and sorry history of conflict with the law, with a number of examples of dishonesty and a number of examples of breaking, entering and stealing for some of which he has in fact been in the past sentenced to terms of imprisonment, some suspended, some periodic, but ultimately, of course, full-time custody. In those circumstances there is little room for the exhibition of any particular level of leniency; Two of the subject offences were committed whilst the applicant was bound by a suspended sentence and the remainder whilst he was on bail. Regard must be had to the application of the principles of deterrence both specific and general. 27 His Honour also found: The applicant is being kept in strict protection because of previous terms of incarceration during one of which, at least, he reported on drug running within the prison. He is right to have fears for his safety and prison therefore impacts more harshly upon him; The applicant pleaded guilty at the earliest opportunity. He is entitled to the maximum benefit which such a plea attracts for its utilitarian value. I have endeavoured, as far as possible, to apply 25% to the sentences which otherwise would have been imposed, but the series of offences requires, on the other hand, in my view, some partial, at least, accumulation; Though there were some elements which might be taken as a point in favour of a good outcome from rehabilitation 'one has to reach that conclusion with some dubiety', having regard to his past history, his long involvement with cannabis, his previous involvement with heroin and, the psychologist's assessment that the applicant has unstable personality functioning. 28 It is trite law that there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies - Markarian v R (2005) 215 ALR 213 at [27]. 29 In Dinsdale v The Queen (2000) 202 CLR 321 at 325 the High Court held: It may not appear how the primary judge has reached the result embodied in his order but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. This principle applies to appeals based upon alleged excessiveness of sentence. 30 What must be looked at in determining if a sentence is unreasonable or plainly unjust: … is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. - Morgan (1993) 78 A Crim R 368 at [371]. 31 Counsel for the applicant placed reliance upon a table of break enter and steal cases and some particular cases therein. This is legitimate in evaluating a sentence, as the Court may have regard to statistics such as those provided by the Judicial Commission of New South Wales and to similar cases in determining sentence patterns and the appropriate sentencing range - R v Bloomfield (1998) 44 NSWLR 734 at 739. However caution must be exercised in the use of such materials as the sentence depends on the facts of each case and bare statistics tell the judge very little which is useful - and see Wong v R (2001) 207 CLR 584 at 605. 32 In my opinion the table of cases suggests the range of sentence is a very broad one. It does not establish the sentences imposed in the Court below were otherwise than within the legitimate range open to his Honour. 33 The matters referred to by the sentencing judge .in his remarks on sentence, which are briefly set out above, amply justify the sentences imposed by him. Such sentences, in my opinion, are neither unreasonable nor unjust. 34 This is a court of error. Its powers in respect of an appeal on sentence are prescribed by section 6(3) of the Criminal Appeal Act 1912. The Court will interfere with the sentence imposed in the Court below only if it be shown that the sentencing judge was in error and then only if it forms a positive opinion that some other, less severe, sentence is warranted in law and should have been passed- R v Simpson (2001) 53 NSWLR 704 at [79]. 35 In my opinion error has not been established nor has it been established 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. 36 I propose the following orders. 1. Leave to appeal granted. 2. 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. 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