New South Wales Court of Criminal Appeal CITATION: Barton v R [2009] NSWCCA 285 HEARING DATE(S): 23 November, 2009 JUDGMENT DATE: 4 December 2009 JUDGMENT OF: Macfarlan JA at 1; Blanch J at 2; Howie J at 20 DECISION: Appeal against conviction which was abandoned be dismissed. Leave to appeal against sentence for offence of do act with intent to pervert the course of justice be granted but the appeal be dismissed. Leave to appeal against the sentence for malicious wounding be granted but the appeal be dismissed. Leave to appeal against sentence imposed in respect of count of break and enter with intent be granted. Quash sentence imposed and instead applicant sentenced to non-parole period of 12 months to date from 29 July, 2010 and balance of term of 2 years. Order his release to parole on 29 July, 2011. The effect of that sentence is the same as the sentence imposed in the District Court, namely a non-parole period of 3 years and 9 months with a total term of 5 years and 9 months. CATCHWORDS: CRIMINAL LAW - sentence - agreed statement of facts - aggravating circumstances LEGISLATION CITED: Crimes Act (NSW) 1900, s113(1), s319, s35(1)(a), s112, s105A, s114 Criminal Appeal Act 1912, s6(3) CATEGORY: Principal judgment The Queen v De Simoni (1981) 147 CLR 383 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 CASES CITED : R v Overall (1993) 71 A Crim R 170 R v Bakewell (unreported NSWCCA 27 June 1996) R v Lardner (unreported NSWCCA 10 September 1998) PARTIES: Jake Robert Barton (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2008/5885 COUNSEL: A Francis (Applicant) V Lydiard (Respondent) SOLICITORS: S O'Connor, Legal Aid Commission S Kavanagh, Solicitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/0301 LOWER COURT JUDICIAL OFFICER: Zahra DCJ LOWER COURT DATE OF DECISION: 8 August, 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Jake Robert Barton IN THE COURT OF CRIMINAL APPEAL CCA 2008/5885 MACFARLAN JA BLANCH J HOWIE J 4 December, 2009 Jake Robert BARTON v Regina JUDGMENT 1 MACFARLAN JA: I agree with Blanch J. 2 BLANCH J: The applicant initially appealed against his conviction for an offence of break and enter with intent to commit a serious indictable offence contrary to s113(1) of the Crimes Act (NSW) 1900. That appeal has been abandoned. The applicant also appealed against the severity of the sentences imposed on him but the argument advanced in the appeal has significantly focussed on the sentence for the abovementioned charge under s113(1). 3 On 8 August, 2008 the applicant was sentenced as follows in the District Court: 1. On a count of commit an act with intent to pervert the course of justice contrary to s319 of the Crimes Act which carries a maximum penalty of 14 years imprisonment and taking into account 4 matters on a Form 1, they being: (a) on 1 May, 2005 did impersonate a police officer; (b) on 1 August, 2007 did drive using handheld mobile phone; (c) on 15 August, 2007 did drive whilst disqualified; (d) on 15 August, 2007 did state a false name, he was sentenced to a non-parole period of 1 year to commence on 30 October, 2007 with a balance of term of 1 year; 2. On a count of malicious wounding under s35(1)(a) Crimes Act which carries a maximum penalty of 7 years, he was sentenced to a non-parole period of 2 years to date from 30 July, 2008 with a balance of term of 1 year; 3. On a count of break and enter with intent contrary to s113(1) Crimes Act which carries a maximum penalty of 10 years, he was sentenced to a non-parole period of 2 years to commence on 30 July, 2009 with a balance of term of 2 years. The effective sentence was a non-parole period of 3 years and 9 months with a balance of term of 2 years, making a total term of 5 years and 9 months. The Facts 4 The charge of committing an act with intent to pervert the course of justice related to the driving of a motor vehicle on 15 August, 2007. The applicant was seen speaking on a mobile phone while driving. His car was stopped and the applicant provided a false name to the police. Unfortunately for the applicant, that person was also a disqualified driver and the applicant was arrested and charged under the false name. On 12 September, 2007 he appeared before the Local Court and entered a plea of guilty under the false name and was ordered to perform 200 hours community service and fined. A week later the person whose identity had been assumed went to the police and disclosed that he was not driving a vehicle on the relevant day and he nominated the applicant as the driver. The applicant was then arrested on 30 October, 2007 when he attended to serve his community service order. He was then charged with all offences before this Court. 5 The offence of malicious wounding occurred on 1 May, 2005 when the applicant was drinking at the Unity Hall Hotel at Balmain. The applicant attempted to take from the counter two glasses of beer which the victim had purchased. When the victim objected, the applicant said "I am a constable. You must be a senior constable to be talking to me like that." Subsequently there was an argument between the two men when the victim spoke to the applicant about the attempt to take the beers and the applicant said to the victim "Fuck off, it's our table" and then said "Fuck off, we're coppers". When the victim asked to be shown identification, the applicant grabbed hold of a partly filled schooner beer glass and thrust it into the chin and mouth area of the victim who fell backwards bleeding heavily from the chin. The victim was taken to hospital and he suffered a deep 5cm laceration to the chin which was gaping and bleeding profusely, a 2cm laceration to the upper lip and multiple superficial lacerations to the chin, forehead and lower lip. The applicant absconded from the hotel. His identity was established to the police by hotel staff but efforts to locate him failed until he was ultimately arrested on 30 October, 2007. 6 The break and enter with intent charge occurred shortly after 6.30 pm on 19 January, 2006. The agreed statement of facts says: "… the victims Timothy and Matthew McDonald were at their residence in Lilyfield. The offender arrived at the home affected by alcohol with another male. The offender was asked to leave the premises however an altercation ensued between the offender and Timothy McDonald. Some twenty minutes later the victims heard a smashing sound coming from the front room and then heard the offender yelling "I'm going to kill you". The offender was observed to come from the front room wielding a shovel; again saying "I'm going to kill you". Both victims ran onto the street with the offender pursuing them whilst swinging the shovel. In the attempt to get away, the victim Matthew McDonald fell to the ground receiving injuries which later required treatment." The applicant fled and he was not located by the police. The Appeal 7 The main focus of the appeal has been on the sentence imposed on the offence of break and enter with intent. The submission is made that the sentencing judge's factual findings are contrary to the sentencing principles established in R v De Simoni (1981) 147 CLR 383 that a judge in imposing sentence may not have regard to aggravating circumstances if they would render an accused liable to a greater punishment. It is submitted that the judge found the applicant broke into the premises knowing there were people in the premises and committed a serious indictable offence. In consequence he would have been guilty of an offence under s112 of the Crimes Act in circumstances of aggravation as defined in s105A of the Crimes Act and that would have rendered him liable to imprisonment for 20 years. It is also contended that the description of the facts by the sentencing judge would establish an offence under s112 which is not aggravated but which would in any event carry a maximum penalty of 14 years. 8 The judge also said when dealing with the facts of this case: "The entry of the offender armed with a shovel and the pursuit of the victim with the shovel would have created great fear in the victim. The victim was disturbed in his own home at night and threatened. Clearly the victim was assaulted by the threatening act of the offender wielding the shovel. Whist the threats to the victim were serious I am unable to conclude that the offender intended more than the assault upon the victim by the menacing with the shovel. I cannot be satisfied that he intended to strike the victim with the shovel though it was clearly used as a weapon to gain entry. The victim did however receive some injury in attempting to escape from the offender's acts of aggression." These remarks refer to an actual assault committed by the applicant. 9 It is perfectly understandable that the sentencing judge would make these comments because he had before him an agreed statement of facts tendered by the Crown and accepted by the defence which contained this material. It is also clear that his Honour knew he was sentencing for an offence under s113(1) of the Crimes Act which carried a maximum penalty of 10 years imprisonment because he specifically said so and there can be no argument open that he mistakenly thought he had open to him a higher maximum penalty than 10 years. 10 The argument is advanced that the sentencing judge has taken into account impermissible factors which have led him to impose a significant sentence of 4 years with a 2 year non-parole period. It is argued that the sentence itself indicates that the judge took these other factors into account because not only is it a long sentence but it is partly cumulative on other sentences. 11 Because of the remarks made on sentence for more abundant caution it would be preferable now to re-sentence in respect of the break and enter with intent charge and in doing so, to make it plain that no factor other than the facts necessary to establish the charge under s113(1) are being taken into account. The facts relevant are that he broke into a house intending to commit a serious indictable offence, that being an offence of being armed with intent to assault contrary to s114 Crimes Act. That, however, gives rise to the question as to whether or not any of these sentences are manifestly excessive and whether there is any justification for reducing the total sentence or the non-parole period. 12 The submission is made that the malicious wounding offence was in 2005 and the break and enter with intent offence was in 2006. On the other hand, the reason the applicant was not dealt with on the malicious wounding charge earlier was because he absconded and it is significant that the break and enter with intent offence was committed while he was still wanted by police for the malicious wounding offence. It is also relevant to consider that in 2003 he was fined on a charge of assault occasioning actual bodily harm. The two offences of malicious wounding and break and enter with intent indicate the applicant had at those times a significant problem with his anger management when affected by alcohol. 13 The charge of committing an act with intent to pervert the course of justice was also a significant offence of its kind. He was prepared to carry that deception through the charging process, the court process and to the punishment process. Bearing in mind the applicant has a number of convictions for dishonesty and that he has served time in prison, the sentence imposed by the sentencing judge for this offence was entirely appropriate. It is accepted in the submissions of the applicant that the sentencing judge took into account all of the relevant factors in respect of the subjective aspects of the applicant's case. 14 A particular submission is made that the applicant has changed since the birth of his child and material was tendered before this Court in the form of an affidavit by the applicant indicating he has completed an Alcoholics Anonymous course and that he is applying for classification for day release and from that affidavit it would appear he has settled down well in prison and is regularly visited by his girlfriend and their son. I note, however, he told the Probation Service that he misled the police and the Court about his identity because he did not want to miss the birth of his baby. The Probation Service noted that the baby was born in June, 2007 and the false identification to the police was given in August, 2007. That report also notes that while on remand in prison in January, 2008 he was dealt with for a misconduct charge. 15 The three offences are all matters which, in my view, require general deterrence to be reflected and when the total sentence is considered, I believe the sentencing judge assessed the totality of criminality correctly and no less severe sentence is warranted in law: see 6(3) of the Criminal Appeal Act 1912. 16 In order to make it plain, however, that no other facts have been taken into account in respect of the break and enter with intent offence other than the facts necessary to establish that charge, I would amend the sentence for that offence. 17 The orders I propose are: 1. The appeal against conviction which was abandoned be dismissed. 2. Leave to appeal against the sentence for the offence of do act with intent to pervert the course of justice be granted but the appeal be dismissed. 3. Leave to appeal against the sentence for malicious wounding be granted but the appeal be dismissed. 4. Leave to appeal against the sentence imposed in respect of the count of break and enter with intent be granted. I would quash the sentence imposed and instead I would sentence the applicant to a non-parole period of 12 months to date from 29 July, 2010 and a balance of term of 2 years. I would order his release to parole on 29 July, 2011. The effect of that sentence is the same as the sentence imposed in the District Court, namely a non-parole period of 3 years and 9 months with a total term of 5 years and 9 months. 18 HOWIE J: I agree with Blanch J. In R v Palu [2002] NSWCCA 381; 134 A Crim R 174 this Court stressed the importance of an agreed statement of facts being consistent with the offence for which the offender was to be sentenced. The error in the present case was a direct consequence of the failure of the parties, and in particular the Crown, to ensure that the facts upon which the Judge was asked to sentence the applicant did not breach the De Simoni principle. There was no reason for the purposes of totality for there to be any concurrency between the sentences imposed for the three separate and distinct offences. The applicant still obtains the benefit of partial concurrence between the sentence for the pervert the course of justice charge and the sentence for the malicious wounding charge which was completely unjustified. 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.