New South Wales Court of Criminal Appeal CITATION: SHARPE v R [2007] NSWCCA 217 HEARING DATE(S): 22 May 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 21; Smart AJ at 22 EX TEMPORE JUDGMENT DATE: 22 May 2007 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW – sentence appeal – break and enter with intent to commit serious indictable offence – form 1 matters taken into account – applicant on parole at time of offences – finding by trial judge of a more serious offence than as charged – error accepted by the crown – obligation to sentence based on offences pleaded – whether court of appeal should intervene – whether sentence manifestly excessive Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 R v McNaughton (2006) 163 A Crim R 381 CASES CITED: R v Ponfield (1999) 48 NSWLR 327 The Queen v De Simoni (1981) 147 CLR 383 PARTIES: David Dimitrios Sharpe (Appl) The Crown FILE NUMBER(S): CCA 2007/773 COUNSEL: C Craigie SC (Appl) D M L Woodburne (Crown) SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/1138 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 25 August 2006 IN THE COURT OF CRIMINAL APPEAL 2007/773 McCLELLAN CJ at CL HISLOP J SMART AJ TUESDAY 22 MAY 2007 SHARPE, David Dimitrios v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to an offence in breach of s 113(1) of the Crimes Act 1900 being that: "On 1 September 2005 at Darling Point in the State of New South Wales, did break and enter a garage, the property of Patricia Ward at 44 Mona Road, Darling Point, with intent to commit a serious indictable offence inside that garage, to wit to steal from the said Patricia Ward." 2 The offence carries a maximum penalty of 10 years imprisonment. The applicant was sentenced to a non-parole period of two years and a head sentence of three and a half years. 3 When sentenced the applicant asked that three further offences listed on a Form 1 be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999; 1. maliciously destroy/damage property, to wit, a garage door lock the property of Nick Scali; 2. malicious destroy/damage property, to wit, a garage door lock the property of Peter Tsu; 3. possess an implement of housebreaking. 4 Each of the offences on the Form 1 was committed on 1 September 2005 at the same garage complex as the subject offence. 5 The applicant was arrested at the scene and charged with the offence of aggravated break and enter with intent (in company) in breach of s 113(2) of the Crimes Act 1900, two counts of malicious damage and one count of possession of a housebreaking implement. 6 On 29 November 2005 the applicant entered a plea of not guilty to the count of aggravate break and enter with intent (in company) but guilty to the other three matters. He was committed for trial. However, on 26 June 2006 the Crown accepted a plea of guilty to the offence of break and enter with intent pursuant to s 113(1) of the Crimes Act and on 27 June 2006 he was arraigned on that charge. 7 At the time of the commission of these offences the applicant was on parole in respect of an offence of aggravated, break enter and steal. He had been convicted of that offence on 8 July 2005 and sentenced to imprisonment for 18 months to date from 30 November 2004 and to expire on 29 May 2006 with a non-parole period of 9 months to expire on 29 August 2005. The applicant had been released to parole on that day being 3 days before he committed the offences the subject of this application. 8 On 16 September 2005 the Parole Board revoked the applicant's parole order and ordered that he serve the balance of his parole being 8 months and 29 days to date from 2 September 2005 and to expire on 30 May 2006. The sentence imposed by the sentencing judge in the present matter was made wholly cumulative on the sentence for the previous offences. 9 The sentencing judge described the circumstances of the applicant's offence in the following terms: "I now turn to the facts which have been tendered without objection. They are at about 8.40 pm on 1 September 2005 a Ms Ward returned home and approached the car park of the unit in Mona Road, Darling Point. As she walked up the driveway towards the main roller door of the car park she saw a light on and heard voices coming from inside. Ms Ward was about two metres from the roller door looking inside the garage area at four separate garages when she heard male voices coming from the direction of the garage that was closer to the main entrance roller door, that is garage number 3. When Ms Ward looked in this direction she saw the offender, that is the offender before me, standing in the middle of the roller door of the garage. She also saw another person called Liest (?) standing on the left hand side of the unit, holding onto the bottom of the door and pulling up and opening the door. Upon seeing these men Ms Ward went upstairs to her unit and telephoned the owner of garage 3, a Mr Scali (?), to tell him that she thought 'some guys are breaking into your garage.' Mr Scali then called the police. The police attended the premises in response to Mr Scali's call and upon arrival went direct to the garage entrance to the complex which is located at the rear of Loftus Street, Darling Point. The police observed that the main roller door of the garage complex was partially opened and a red light alarm was flashing on a wall near the gate. On closer inspection of internal garage area revealed three of the individual garage doors had been damaged, the locks having been broken. The police approached the gate and saw both offenders coming out of the garage number 3 inside the complex which was partly opened. The police noted the gap was about sixteen to seventeen centimetres between the driveway and the mesh style roller door. The police called out to the offenders 'don't move, police.' The offenders began to walk away from the police towards a corridor leading to the exit of the building. The police apprehended both offenders after a short pursuit. The offender Sharp said he was merely going to urinate, that is where he was going. A search of the offender before me revealed a sharp plastic handled Mahini (?) brand metallic spike. This implement was used to break the locks in the garages inside the complex. Both offenders were conveyed to the police station and introduced to the custody manager. Ms Ward came downstairs in the car park area to observe that her garage door was up, the lock was broken and that a blanket which covered some boxed in her garage was lying on the floor. One of those boxes contained a car stereo, another a video camera. Both have been moved from the upper shelf and placed in a filing cabinet in the middle of the garage door. Mr Scalie observed that his own garage door was open and the lock broken, but that no property had been taken. A third resident Mr Tsu was not present at the time of the incident but later confirmed damage to his garage door. The damage to the garages belonging to Messrs Scali and Tsu is the subject of the matters on the Form 1. The offender before me participated in an electronic record of interview and he admitted to being found at the location of 44 Mona Road, Darling Point and being inside the garage number 3. All the property was recovered and accounted for." Ground 1 - That the learned sentencing judge erred in law by applying a finding that the applicant offended whilst in company as an aggravating factor, as a more serious offence than that charged as constituted by such a finding. 10 The Crown accepted that an error has occurred. In his remarks on sentence his Honour said when setting out aggravating factors of the applicant's criminal history: "In aggravation, the offender has a considerable record going back to the Children's Court, including robbery in company. The offence in the matter before me was also committed whilst the offender was in company with another." 11 Later his Honour said: "The offence involves an interference with the property of others. It was committed in company. 12 Later, his Honour remarked: "To reflect the level of criminality involved and taking into account the fact that the offence was committed whilst the offender was on conditional liberty and in company, the need for general deterrence and the matters on the Form 1, the appropriate period of non parole is two years to date from 29 May 2006 with a further eighteen months of parole." 13 Although the sentencing judge was required to find the facts relevant to the offences and the circumstances in which they were committed he was obliged to sentence the applicant for the offences to which he had pleaded guilty. An offence contrary to s 113(2) carries a maximum penalty of 14 years imprisonment in recognition of the fact that it involves commission of the offence of break, enter and steal in company of another, a more serious offence than when the criminal act is committed alone and for which s 113(1) of the Act provides a maximum penalty of 10 years imprisonment. By having regard to the fact that the offence for which he was being sentenced was committed in company when determining the appropriate penalty his Honour breached the principle discussed by the High Court in The Queen v De Simoni (1981) 147 CLR 383. In these circumstances the question which needs to be considered is, whether, notwithstanding that an error has occurred, this Court should intervene (s 6(3) Criminal Appeal Act 1912). It is convenient to consider this question together with the second ground of appeal. Ground 2 – the sentence imposed is manifestly excessive 14 The applicant accepted that his significant record of break and enter offences and other matters including an offence of robbery in company were matters which were relevant to the appropriate sentence (R v McNaughton (2006) 163 A Crim R 381). In R v Ponfield (1999) 48 NSWLR 327 this Court identified matters going to the seriousness of an offence under s 112 of the Crimes Act similar principles are relevant to the present offence. Some of the matters identified by the court included whether the offender was on conditional liberty on bail or on parole, whether the offender has a prior record particularly for like offences and whether there was multiplicity of offences. Each of these factors was a feature of the present case. As a consequence the need for general and specific deterrence was enhanced. When sentencing the applicant the sentencing judge was required to have regard to the fact that the applicant had demonstrated an attitude of disobedience of the law. His Honour was obliged to give appropriate weight to retribution, personal deterrence and the protection of society (see McNaughton [26]). 15 The applicant was born on 2 March 1981 and is now aged 26. His criminal history is significant. He became a State ward at the age of 18 months and his upbringing took place in State run centres with placements in foster care. He exhibited behavioural problems in his early life including acts of physical aggression and stealing and has a record of previous convictions which extends from 1995 in the Children's Court. They include offences for malicious damage, larceny, assault, possession of housebreaking implements, possession of prohibited drugs, the stealing of motor vehicles, robbery in company, supply prohibited drug and a variety of other offences. Although when sentenced for some of these offences, the sentencing judge has attempted to provide sentences in the hope of the applicant's rehabilitation, those hopes have been repeatedly dashed. As in the present case the applicant has persistently offended when he has been in the community on conditional liberty. The applicant developed a dependency on drugs and has used heroin and cocaine. 16 The sentencing judge found that the offence for which the applicant was being sentenced, although objectively serious, fell towards the lower end of the appropriate scale of objective seriousness. Although I share that view his Honour was also required to have regard to the matters on the Form 1. 17 Since being taken into custody the applicant has exhibited some awareness of the seriousness of his offending and recognised the fact that his drug and alcohol habits have led him to a life of almost continuous crime. Although he has indicated an intention to attempt to rehabilitate himself his past record does not allow confidence that this will occur. However, the sentencing judge was prepared to find special circumstances to enable a more lengthy period of probation to assist the applicant in his stated objective of rehabilitation. These may be considered generous findings. 18 My scepticism in relation to this matter is reinforced by his Honour's finding that in custody the offender has revealed, according to the probation and parole report, that he neither accepts nor understands reasonable directions and has committed a number of disciplinary breaches. As I said earlier the offender had been released on parole when he committed this offence. The applicant has, without objection, read an affidavit which contains a record of some of his accomplishments since his present incarceration. It does provide some, although limited, hope that upon completing his present term of imprisonment he may reform his behaviour. His counsel also addressed attention to the relevant sentencing statistics and emphasised that the sentence imposed was not towards the lower end of the range and indeed maybe at the higher end. 19 Although I accept that the objective seriousness of the offence was at the lower end of the scale, the applicant's subjective circumstances were, as I have indicated, not favourable. In my opinion, notwithstanding the error which his Honour made, having regard to all of the relevant matters, the sentence is not such as to require the intervention of this Court. The sentence may be considered stern but in my opinion no other sentence was required by law. 20 Accordingly, although I would grant leave to appeal I would dismiss the appeal. 21 HISLOP J: I agree. 22 SMART AJ: I also agree. 23 McCLELLAN CJ at CL: Accordingly, the orders of the court are as I have indicated. ********** 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.