Scott Wallace Handley v R [2008] NSWCCA 5

New South Wales Court of Criminal Appeal

CITATION: Scott Wallace Handley v R [2008] NSWCCA 5

HEARING DATE(S): 30 January 2008

JUDGMENT DATE: 30 January 2008

JUDGMENT OF: Hodgson JA at 16; Kirby J at 17; Buddin J at 1

DECISION: Grant leave to appeal but dismiss the appeal.

CATCHWORDS: Criminal law - sentencing - offences of break and enter and other dishonesty - pre-sentence report ordered but not obtained - accumulation of sentences

PARTIES: Scott Wallace Handley (Applicant) Crown (Respondent)

FILE NUMBER(S): CCA 2007/2824

COUNSEL: Applicant in person Ms J Girdham (Crown)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/1019

LOWER COURT JUDICIAL OFFICER: Berman SC DCJ

LOWER COURT DATE OF DECISION: 20 February 2007

IN THE COURT OF CRIMINAL APPEAL 2007/2824

HODGSON JA KIRBY J BUDDIN J

WEDNESDAY 30 JANUARY 2008 SCOTT WALLACE PETER HANDLEY v R Judgment 1 BUDDIN J: The applicant, who is unrepresented, seeks leave to appeal against sentences imposed upon him in the District Court. At his request the applicant appeared in this Court by video-link. In respect of an offence of break and enter, committed on 26 May 2006, he was sentenced to a non-parole period of 2 years with a total sentence of 4 years imprisonment. The applicant received a fixed term of 2 years, to be served concurrently with the sentence to which I have just referred, in respect of an unrelated offence of demand property with menaces. In sentencing the applicant for that offence, the sentencing judge took into account two matters on a Form 1 document, namely offences of goods in custody and making a false statement to a pawnbroker. The applicant also received a further wholly concurrent sentence for an offence of take and drive a conveyance. 2 In respect of a further offence of break and enter, committed on 6 June 2006, a non-parole period of 2 years with a total sentence of 4 years imprisonment was imposed upon the applicant. This sentence was ordered to commence 12 months after the commencement of the earlier sentence. The total effective non-parole period is thus one of 3 years with the effective total sentence being 5 years. The applicant was on parole at the time that the present offences were committed. Although his parole was revoked, the sentences to which I have referred were ordered by the sentencing judge to run concurrently with that order of revocation. 3 It is unnecessary to recite the facts of the various offences in any great detail. Each of the break and enter offences was committed upon a private residence. On the first occasion, the applicant took a number of items of electrical equipment. On the second occasion, he was in the process of removing a plasma TV when he was disturbed by the owner of the premises when she returned home. The applicant's fingerprints were located at each of the two residences. The applicant used the stolen vehicle in order to commit these offences. 4 The victim of the offence of demand property with menaces was the applicant's aging mother. The incident, which took place in a club, was captured on CCTV. The applicant declined to speak to police about the various offences when he was arrested. 5 The sentencing judge had the benefit of a comprehensive psychological report prepared by the firm of Duffy Barrier and Robilliard. The applicant gave evidence during the course of the sentencing proceedings and also provided a letter which he had prepared for the sentencing judge. That material provided his Honour with considerable information about the applicant's background. 6 The applicant's father died when he was 15. Thereafter he became addicted to drugs. Although he has undergone, with varying degrees of success, a number of rehabilitation programs over the course of his life, the applicant has seemingly always relapsed and resumed taking drugs. He has nonetheless managed to find work as an electrician. The applicant who is now aged 41, has two sons to whom he is devoted. The sentencing judge found that the applicant was remorseful and extended to him a discount of 25% to reflect the fact that he had entered pleas of guilty at an early stage of proceedings. To the applicant's credit, his mother is still supportive of him. 7 The applicant has an extensive criminal history which began as far back as 1984. Since then he has been before the courts on a very regular basis. He has numerous convictions for offences of dishonesty, many of which involve break and enters. Furthermore, he has been imprisoned on a number of occasions for such offences. Indeed he had only been released on parole for a period of 3 months following a sentence for an earlier offence of break and enter when he committed the present offences. As the sentencing judge correctly observed, that was a matter of considerable aggravation. In the circumstances his Honour concluded that a measure of personal deterrence was called for. His Honour did nonetheless moderate the sentences that he would otherwise have imposed to reflect the fact that the applicant's custodial circumstances were more onerous than would normally be the case. That was because he was in protective custody by reason of the fact that he had been assaulted in gaol whilst serving an earlier sentence. 8 The applicant's first ground of appeal is that although a pre-sentence report was ordered, no such report was presented to the court. It is not clear as to whether one was ever prepared. It is to be observed that he was represented during the sentence proceedings by a solicitor employed by the Legal Aid Commission. 9 The applicant asserts in his written submissions that he informed his legal representative "in the cells below the court that [he] wished not to proceed at the time". He also asserted that he had made a complaint to the Legal Aid Commission about his representation. No further particulars of that complaint are provided. 10 As I have previously indicated, a comprehensive psychological report was tendered during the course of the sentencing proceedings. That report was prepared at the instigation of the Legal Aid Commission and was evidently requested subsequent to the order for a pre-sentence report being made. The report, which ran for 10 typed pages, covered a range of issues which were of potential relevance to the sentencing proceedings. Not only did it set out pertinent details about the applicant's background but it also reviewed his drug taking history, his medical history, his psychological history, his mental state, and his attitude to the offences. The author of the report also administered a psychometric assessment of the applicant before offering a clinical opinion about the applicant. As I have said, that material was supplemented by evidence from the applicant himself. In the circumstances, it is difficult to see what additional assistance the sentencing judge could have been derived from a pre-sentence report. It may well be that the applicant's legal representative saw no reason to burden the court with any further material. In any event he certainly made no application for the proceedings to be adjourned in order that one could be obtained. I would reject this ground of appeal since it has not been demonstrated that any prejudice was suffered by the applicant by reason of the court not having available to it a pre-sentence report. 11 The second ground of appeal complains that the sentences imposed are manifestly excessive. As I understand the situation, the real nub of the applicant's submission is that all sentences should have been ordered to run concurrently. As the applicant puts it "the only reason for me pleading guilty to one of the [break and enter offences] was to have both run together. I know this may seem too late now, as I wished not to waste further of the Crown's time by taking it to trial." 12 So long of course as there was an appropriate acknowledgement by the applicant of his guilt of the various offences (which there was), then his motivation for doing so was irrelevant. Moreover, there was convincing evidence of his guilt. 13 More significantly, the applicant's solicitor expressly conceded that a measure of accumulation was called for. That was an entirely proper concession to make in all the circumstances of the case. These were, after all, entirely separate acts of criminality committed on separate days involving different victims. In my view, there was simply no occasion for the imposition of wholly concurrent sentences for all offences. Accordingly, I would reject this part of the applicant's submission. 14 Nor would I accept the submission that the sentences imposed, either individually or in their overall effect, were manifestly excessive. I have come to that conclusion in view of the serious nature of the various offences, the fact that the applicant was on parole at the time and because he had an extensive criminal history which included, as I have said, numerous convictions for offences of a similar kind. Moreover, there was also already a degree of in-built leniency in the sentences imposed insofar as a number of them were ordered to be served concurrently. Furthermore, the sentencing judge made a finding of special circumstances to enable the applicant to have the benefit of an extended period on parole within which to overcome his dependency upon illicit drugs. 15 I would grant leave to appeal but dismiss the appeal. 16 HODGSON JA: I agree. 17 KIRBY J: I also agree. 18 HODGSON JA: The order of the Court will be that leave to appeal is granted but the appeal is dismissed. **********