New South Wales Court of Criminal Appeal CITATION: Gibbs v Regina [2007] NSWCCA 171 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14 June 2007 JUDGMENT DATE: 21 June 2007 JUDGMENT OF: Hodgson JA at 1; Grove J at 2; Simpson J at 3 DECISION: Leave to appeal granted. Sentence quashed, in lieu thereof the applicant be sentenced to imprisonment with a non-parole period of twelve months, commencing on 16 September 2006 and expiring on 15 September 2007, with a balance of term of one year and three months, expiring on 15 December 2008. The applicant is to be released on parole at the expiration of the non-parole period, 15 September 2007. CATCHWORDS: CRIMINAL LAW - SENTENCING - break enter and steal - plea of guilty - pre-sentence residential rehabilitation - parity - juvenile co-offenders - Children's Court order - breach of bail conditions LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 R v Colgan [1999] NSWCCA 292 CASES CITED: R v Govinden [1999] NSWCCA 118; 106 A Crim R 314 R v Tran [2005] NSWCCA 35 PARTIES: Jasmynd Gibbs (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/865 COUNSEL: A Cook/G Wright (Applicant) J Dwyer (Respondent) SOLICITORS: Aboriginal Legal Services (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: Local Court - Wagga Wagga LOWER COURT FILE NUMBER(S): 06/71/0060 LOWER COURT JUDICIAL OFFICER: Puckeridge J LOWER COURT DATE OF DECISION: 29 September 2006 IN THE COURT OF CRIMINAL APPEAL 2007/865 HODGSON JA GROVE J SIMPSON J 21 JUNE 2007 JASMYND GIBBS v REGINA Judgment 1 HODGSON JA: I agree with Simpson J. 2 GROVE J: I agree with Simpson J. 3 SIMPSON J: On 28 June 2006, in the Wagga Wagga Local Court, the applicant entered a plea of guilty to a single count of aggravated break enter and steal (the circumstance of aggravation being that the applicant was in company) committed on 31 March 2006. He asked that a further offence of break enter and steal, committed on 12 March 2006, on a Form 1, be taken into account pursuant to the provisions of Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"). The offence to which the applicant pleaded guilty was brought under s 112(2) of the Crimes Act 1900, which prescribes a maximum penalty of imprisonment for 20 years. By Pt 4, Div 1A of the Sentencing Procedure Act, a standard non-parole period of imprisonment for 5 years is prescribed for the offence. 4 On 29 September 2006 Judge Puckeridge QC sentenced the applicant to a total term of imprisonment for 2 years and 3 months, made up of a non-parole period of 15 months, with a balance of term of 12 months. The applicant seeks leave to appeal against the asserted severity of this sentence. 5 Both offences were similar in nature. The offence the subject of the charge was committed at approximately 3.00am on 31 March 2006. The applicant, in company with two juveniles, entered residential premises via a closed but unlocked roller garage door. A woman and her two children were asleep inside the premises. Her husband was absent on a fishing trip. 6 The offenders entered the body of the house via an internal door from the garage. Together with the two juvenile co-offenders, he ransacked a number of rooms removing various items of computer equipment, handbags, and other property. He entered the bedroom of a teenage daughter. The daughter awoke but, fearing for her safety, pretended to be asleep. 7 The offenders were observed by a neighbour who detained one of the juveniles. Another neighbour attempted to apprehend the applicant but he pushed her away and made his escape. The other juvenile was arrested on 6 April 2006. The applicant was arrested on 12 April 2006. When interviewed he made full admissions and expressed remorse for his conduct. He and one of the juveniles assisted police to recover a large proportion of the property stolen. 8 The offence the subject of the Form 1 was of a similar kind except that it was committed by the applicant alone. At some time between 12 midnight and 8.30am on 12 March 2006 the applicant entered a closed but unlocked garage roller door and entered the garage. He removed a pair of golf shoes and two golf clubs before leaving. One of the golf clubs was recovered on the day of the applicant's arrest. 9 Following his arrest the applicant was granted bail, subject to conditions. One of the conditions (a "curfew" condition) was that he not absent himself from his residence between the hours of 8.00pm and 6.00am unless in the company of an acceptable adult. On 29 May the curfew was varied to permit the applicant to be absent from his home if an inpatient at O'Connor House or any other residential rehabilitation programme. Subjective circumstances 10 The sentencing hearing took place on 15 September 2006. A good deal of documentary evidence was put before the sentencing judge. It revealed the following. 11 The applicant was born on 6 August 1987. He was therefore 18½ years of age at the time of each offence. He had a criminal record which included two separate offences of being carried in a conveyance taken without consent, in respect of each of which he was subjected to a bond (in August 2003 and January 2005); an offence of break enter and steal in respect of which he was, in February 2004, again subjected to a 12 month bond; and with two offences in Queensland, of committing a public nuisance (in respect of which no conviction was recorded but a recognisance imposed) and unlawful possession of a motor vehicle (again, in respect of which no conviction was recorded, but a fine of $200 imposed). The bond which had been imposed in the Bidura Children's Court in January 2005 in relation to the second count of being carried in a conveyance taken without consent was current at the time of each of the present offences. 12 The subjective case made on behalf of the applicant had some unusual, and often compelling, features. He is of Aboriginal descent. His mother wrote a lengthy letter, in which she accepted responsibility for the applicant's difficulties. She condemned her own mothering skills (or lack thereof). She said that she had, 10 years earlier, been diagnosed as suffering a bipolar and personality disorder but that she only acknowledged the diagnosis and accepted treatment five years prior to the date on which she wrote the letter (September 2006). She said that from a very young age the applicant had suffered because of her illness and that he had witnessed domestic violence by her; that she was consuming alcohol heavily; that she took the applicant and his sister to a women's refuge where the children were classified as "children at risk" and removed from her care. 13 The applicant had experienced many moves, including changes of schooling. His mother was subsequently diagnosed as suffering from breast cancer and was forced to leave the children with her boyfriend who neglected them. She continued to be a heavy consumer of alcohol. 14 There was much more, but what I have written is sufficient to give the flavour of the applicant's childhood and adolescence. What his mother said was substantiated by correspondence from other relatives and acquaintances. 15 There was other evidence in the sentencing proceedings. The manager of the Orana Haven Aboriginal Corporation confirmed that the applicant had been a resident at that organisation's drug and alcohol rehabilitation centre from 2 July 2006 for 9½ weeks. He reported favourably, saying that the applicant participated in all aspects of the programme, which he did not complete because of his commitment to attend the sentencing proceedings in the District Court in Wagga Wagga. Prior to taking up residence in Orana House, the applicant had spent a period of time – about three weeks – in another residential detoxification facility, O'Connor House in Wagga Wagga. 16 There was also a pre-sentence report, in which it was said that the applicant recognised that he had lost control of his alcohol consumption and was taking appropriate steps with respect to this by his attendance at the detoxification programme at O'Connor House, and at Orana Haven. Although brief, the report also tended to support the description given by the applicant's mother of his circumstances. 17 The applicant himself gave evidence. He said that he suffered from anxiety but had consulted medical practitioners who had prescribed some medication. He had spent a period of time in a Rozelle "mental institution". 18 At the conclusion of the evidence and after hearing submissions, the judge decided to stand the matter over for determination of sentence on 29 September. He made it clear that he was contemplating a further lengthy period of adjournment as permitted by s 11 of the Sentencing Procedure Act. He also considered the possibility of a sentence of a length that might be suspended. The purpose of taking the former course is to enable an offender to demonstrate rehabilitation, and the capacity to live a law-abiding life. Such a course has in it a degree of leniency, but also gives an offender an opportunity (and at the same time imposes upon him an onus) by his own behaviour to justify leniency. A sentence that is suspended has a similar effect. His Honour reminded the applicant of his bail conditions. 19 On resumption, however, it was brought to the judge's attention that the applicant had, in a serious way, breached his bail conditions. On 17 September he was apprehended, during the "curfew" hours, away from home; worse, he was a passenger in a stolen vehicle. The vehicle was, in fact, involved in an accident, and the applicant spent some time in hospital. He was arrested on 26 September 2006, and appeared at court in custody on the day fixed for sentencing. The remarks on sentence 20 The sentencing judge recounted the facts of the offences, and the subjective material provided to him. It is clear that he was moved by the letter from the applicant's mother. He said that he had given serious consideration to dealing with the applicant pursuant to s 11 of the Sentencing Procedure Act, which permits a court, in appropriate circumstances, to defer sentencing for a period of up to 12 months in order to facilitate rehabilitation. Until 29 September the evidence had plainly satisfied the judge that the applicant had real prospects of achieving rehabilitation. 21 Judge Puckeridge was unimpressed by the most recent turn of events. In sentencing the applicant he repeated that he had intended to give consideration to using the provisions of s 11 of the Sentencing Procedure Act but said: "The offender has shown that he cannot even abide by the conditions of bail for a very short period of time after they were imposed." He thus determined that the applicant would not be given the benefit of s 11. 22 He found special circumstances, pursuant to s 44(2) of the Sentencing Procedure Act, justifying departure from the statutory ratio between the head sentence and the non-parole period there stated, and proceeded to impose the sentence I have already outlined. He also departed, for the obvious reason of the applicant's plea of guilty, and possibly by reason of his rehabilitative efforts, from the standard non-parole period. The grounds of the application 23 Three grounds of the application were pleaded. They are: "1. His Honour erred in failing to have proper regard in fixing sentence to the fact that the applicant had spent about three months in full time residential rehabilitation prior to be sentenced. 2. The learned sentencing judge erred in failing to have appropriate regard to the order imposed on the co-offender (ML) 3. The learned sentencing judge fell into error in his assessment of the relevant facts to be taken into account insofar as he stated in his Remarks on Sentence: ' The offender has shown that he cannot even abide by the conditions of bail for a very short period of time after they were imposed '." Ground 1: pre-sentence residential rehabilitation 24 There is no explicit reference in the Remarks on Sentence to the periods spent by the applicant at the Orana Haven and at O'Connor House. That is a period of about 12 weeks. The Crown conceded that, where appropriate, a sentencing judge may take into account a period of pre-sentence residential rehabilitation. The extent to which that may be done depends on a number of factors, including the rigour with which the programme is administered, and the extent to which the participant's freedom is restricted thereby. There was little evidence, other than the letter from the Orana House manager, to demonstrate the demands made upon the applicant by these programmes. However that letter permits an inference that the Orana House programme was relatively demanding and rigorous. It is also not to be overlooked that the applicant left only because of his court hearing: he did not abandon the programme voluntarily. 25 It was proposed on behalf of the applicant that it was "incumbent" upon the sentencing judge to reduce the sentence imposed by up to 75 percent of that time in recognition of the circumstances of the residential rehabilitation – in other words, that the applicant's sentence ought to have been reduced by 75 percent of three months, or about 67-68 days. 26 I have come to the view that the absence of any mention of what amounts (at least) to semi-custody suggests that it was overlooked. I would not accept the figure of 75 percent as an appropriate reduction, nor do I accept that an allowance for pre-sentence rehabilitation ought always to be mathematically quantified. However, I do accept that it ought to have been, and was not, recognised in the sentencing decision. Ground 2: parity 27 Attention was drawn to the apparent disparity in sentencing with respect to one only of the co-offenders, ML. Both co-offenders were juveniles, and were dealt with in the Children's Court. ML, who had some criminal history, and who was about 2 years and 4 months younger than the applicant, was released on probation for a period of 12 months. 28 The co-offender, FW, was, this Court was told, dealt with by way of "case conference". He was 17 years of age at the time of the offence. There is no evidence that he had previously contravened the criminal law. 29 It was submitted that there is "a significant disproportionality" between the sentence imposed upon the applicant, and that imposed upon ML. There is authority that, in considering questions of parity, this Court is, in appropriate circumstances, entitled to take into account sentences or other determinations of the Children's Court: R v Tran [2005] NSWCCA 35; R v Govinden [1999] NSWCCA 118; 106 A Crim R 314; R v Colgan [1999] NSWCCA 292. 30 Given that the applicant was 18½ years of age at the time of the offence charged, he had only recently reached the age at which he would be dealt with in an adult court. 31 Sensibly, it was not argued that the applicant ought to have been dealt with by way of a non-custodial sentence; rather, the argument was put that the sentence ought to have been moderated in order to achieve some semblance of balance with the sentence imposed upon ML. 32 I would accept that, given the applicant's relative youth and recent entry into adulthood, with its exposure of him to adult criminal courts, it was relevant to take into account the manner in which ML (and, indeed FW) was dealt with. This is not to accept a true parity argument, resulting in a conclusion that the applicant ought to have been, like ML, dealt with by way of a bond (and no such argument was put); but that the leniency shown to ML had a bearing on the final sentencing determination relative to the applicant. It was not taken into account. Ground 3: the applicant's breach of bail conditions 33 While it was accepted that the applicant's breach of bail conditions and arrest on 17 September was a relevant fact to be taken into account by the sentencing judge, it was argued that the manner in which this was done was "erroneous and unfair". This was, as I understand it, because there was no evidence that the applicant had, on any other occasion, breached the curfew condition. Accordingly, it was argued that the seriousness of the breach was overstated. It was not right to say that he could not abide by his bail conditions even for a very short period after they were imposed. 34 While it may be accepted that the applicant had been subjected to the curfew condition from 12 April – about 5 months earlier – and that there was no evidence of any other breaches, the fact is that his breach occurred virtually on the eve of sentencing, and following sentencing hearings, in which the terms of the bail conditions had been brought home to the applicant. Moreover, the breach was not merely a breach of the curfew condition, the applicant was travelling in a stolen vehicle. His conduct deserved strong condemnation. 35 The course the sentencing judge was contemplating – a lengthy remand to enable the applicant to demonstrate rehabilitation – was thus circumvented by the applicant's own conduct. If the applicant were unable to adhere to his bail conditions at the crucial period immediately before sentencing, then there was good reason for the judge to lack confidence that he would adhere to those conditions after the pressure of imminent sentencing was lifted. The argument was not that the judge ought to have followed either of the courses he had earlier been contemplating. Realistically, counsel tacitly accepted that the applicant had forfeited that opportunity. Rather, the argument was that the judge, having decided not to follow the s 11 path, allowed the applicant's foolish behaviour to influence too greatly the sentence eventually imposed, and that this could be seen from the remark quoted in the pleaded ground. I would reject this ground of the application. The applicant's conduct did deserve condemnation, and condemnation expressed as strongly as it was. 36 Overall, I am satisfied that the failure to take into account the period of pre-sentence rehabilitation, and the failure to take into account the manner in which ML was dealt with in the Children's Court establish error in the sentencing process. 37 The error calls for a reduction in the non-parole period. I would not interfere with the overall terms of the sentence imposed. (This produces a considerable variation on the s 44(2) ratio.) I propose that leave to appeal be granted, the sentence be quashed, and in lieu thereof the applicant be sentenced to imprisonment with a non-parole period of twelve months, commencing on 16 September 2006 and expiring on 15 September 2007, with a balance of term of one year and three months, expiring on 15 December 2008. The applicant is to be released on parole at the expiration of the non-parole period, 15 September 2007. ********** 03/08/2007 - Edit error - replace "six months" with "three months" - Paragraph(s) Coversheet and [37] 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.