New South Wales Court of Criminal Appeal CITATION: REESE, David Robert v R [2006] NSWCCA 421 HEARING DATE(S): 16 March 2006 JUDGMENT DATE: 16 March 2006 JUDGMENT OF: Sully J at 1, 21, 23; Simpson J at 2; Howie J at 22 EX TEMPORE JUDGMENT DATE: 03/16/2006 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – application for leave to appeal against sentence – specially aggravated break, enter and steal – assault occasioning actual bodily harm - plea of guilty – subjective circumstances – relevance of prior record – whether sentence manifestly excessive LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 CASES CITED: Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465 PARTIES: David Robert Reese (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2005/2383 COUNSEL: A Francis (Applicant) P Miller (Respondent) SOLICITORS: S O'Connor - Legal Aid Commission (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/0035 LOWER COURT JUDICIAL OFFICER: Delaney DCJ LOWER COURT DATE OF DECISION: 29 April 2005 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 2005/2383 SULLY J SIMPSON J HOWIE J 16 March 2006 REESE, David Robert v R Judgment 1 SULLY J: The court is in a position to express a view about this application. Justice Simpson will deliver the first judgment. 2 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed on him in the District Court on 29 April 2005, following his plea of guilty to an offence of specially aggravated break, enter and steal and commit a serious indictable offence. The serious indictable offence was assault occasioning actual bodily harm; the circumstance of special aggravation was wounding. The offence was committed on 23 September 2004. 3 Pursuant to s112(3) of the Crimes Act 1900 the offence carries a maximum penalty of imprisonment for twenty-five years. By s54A of the Crimes (Sentencing Procedure) Act 1999 a standard non-parole period of seven years is prescribed. The applicant was sentenced to imprisonment for five and a half years made up of a non-parole period of three years and a balance of term of two and a half years. In imposing that sentence the sentencing judge, Delaney DCJ, held that the offence was below the mid range of objective seriousness of sentences of that kind. It was, nonetheless, a serious offence. 4 It was committed about 3.15am at the home of an acquaintance of the applicant. The victim was watching television. The applicant made two attempts to gain entry by removing flyscreens at the front and the rear of the premises, before forcing the lock of a window and then smashing the glass and entering the unit. 5 He attacked the victim, initially, it seems, without a weapon, but subsequently armed himself with an industrial broom that belonged to the victim. He used this to strike the victim around the head and body. He broke the broom handle and continued to use the broom shaft to attack the victim. 6 The victim in fact described this part of the attack as the applicant raising the broom handle above his head, pushing the handle towards the victim with a great deal of force and, with the end of the broom handle, stabbing the victim in the top left hand of his head. It was the splintered end of the broom handle that caused a wound to the victim's head, which subsequently required four stitches. 7 The victim fled and was followed by the applicant who pushed the victim through a flyscreen door, damaging the door. In the process the victim ran to a nearby service station where he contacted the police. The applicant was arrested soon after and has remained in custody ever since. Subjective circumstances 8 The sentencing judge had the benefit of a pre-sentence report. This disclosed the applicant's subjective case. He was born on 30 September 1953 and was a week short of forty-one years of age when he committed the offence. He had some record, including offences of break, enter and steal, although these were committed as a juvenile and were dealt with in the Children's Court in 1979; they can safely be disregarded. 9 There are two offences of assault, one in 1985 and one in 1999. There are some drug offences and there are the most recent serious offences which include possession of housebreaking implements, enter building or land with intent to commit an indictable offence and goods in custody. For these he was dealt with in September 2003 and on each of those a bond was imposed. All told, and notwithstanding those last offences, the applicant's record is relatively minor, although not such as to be entirely disregarded. 10 The applicant came from a dysfunctional family. He is the eldest of three children. His mother was diagnosed as a paranoid schizophrenic, following which she refused treatment. Thereafter the applicant and his siblings were placed in the custody of his father. 11 His education was very limited. His literacy skills were described as being at survival level only. He has had some employment, but not in the last eight years. He lost his last employment as a result of accelerating drug use. He used cannabis and became addicted to amphetamines. He had used amphetamines and consumed some alcohol on the evening of the offence. At the time of the offence he was homeless, living under a bridge not far from the victim's home. Remarks on Sentence 12 As indicated, Delaney DCJ held that the offence was below the mid range of objective seriousness. In effect, putting the findings so neutrally somewhat understates what his Honour said, which was that while there was no dispute that this was a serious offence in terms of the count under s112(3) of the Crimes Act, the offence could not be regarded in any way other than below the mid range of objective seriousness. For my part I regard this as a rather generous finding in relation to the applicant when considering the ferocity of the attack on the victim. 13 Delaney DCJ recited the objective facts and also the subjective matters that had been placed before him. He made reference on more than one occasion to the applicant's criminal record. On one occasion, having referred to the record, he said "however, it does nothing to aggravate the offence", and made a reference to Veen (No 2) v The Queen [1988] HCA 14; 164 CLR 465. 14 He then noted that the applicant was on a bond at the time of the offence and turned a little later again to the applicant's criminal record. He did this specifically in the context of referring to aggravating factors. Again it is convenient to quote what he said. He referred, as an aggravating feature, to the fact that the applicant was on a bond, and then he said: "… he had previous convictions for a similar offence. However, the court is to keep in mind Veen (No 2) v The Queen on this issue." 15 He then referred to the use of the weapon. He noted that the offence was induced by alcohol and drugs and said that he would depart from the standard non-parole period because, among other reasons, of the plea of guilty which he held warranted a reduction in sentence of twenty per cent. The pre-sentence report also included the suggestion that the offence had been committed by way of debt recovery, the applicant believing that the victim owed him money which he refused to pay. His Honour appears to have accepted this as a fact although no direct evidence of it was put before him. His Honour also found that the applicant had expressed remorse for the offence and for the effect on the victim. The application for leave to appeal 16 Two grounds were advanced. The first is that the sentencing judge erred in treating the applicant's criminal record as an aggravating factor. The second is that the sentence is manifestly excessive in the circumstances. 17 The first of these, I think, can be dealt with quickly. The reference to the applicant's criminal record is said to contain an error in the assertion that the applicant had previous convictions for a similar offence. The previous offences were not strictly of the same kind, but there certainly were relevant previous convictions. In any event, that reference was followed immediately by the words I have previously extracted: "… however, the court is to keep in mind Veen (No 2) v The Queen on this issue." 18 I do not think his Honour can be taken to have (impermissibly) regarded the previous conviction as an aggravating feature. 19 The second ground is that the sentence was manifestly excessive. In my opinion this cannot be accepted. The offence itself was extremely serious, even though his Honour concluded that it was below the mid range of objective seriousness of the offences. His Honour was required to bear in mind the seven year standard non-parole period prescribed by s54A of the Sentencing Procedure Act as a guidepost or benchmark. 20 It was submitted that when the twenty per cent discount for the plea of guilty is factored in, the starting point for the head sentence was almost seven years. That may be so, but it does not strike me in the circumstances as being manifestly excessive. I would grant leave to appeal but dismiss the appeal. 21 SULLY J: I entirely agree. 22 HOWIE J: I also agree. 23 SULLY J: The order of the court will be as proposed by Simpson 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. 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.