New South Wales Court of Criminal Appeal CITATION: McKILLOP, Jamie Scott v R [2010] NSWCCA 126 HEARING DATE(S): 26 March 2010 JUDGMENT DATE: 11 June 2010 JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 3 DECISION: (i) Leave to appeal be granted; (ii) Appeal be dismissed. CATCHWORDS: CRIMINAL LAW – appeal – sentence – break, enter and steal – aggravated break, enter and steal – 15 offences charged – 139 offences on Form 1 – no identifiable or manifest error – sentence reflects the number and seriousness of the offences LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment Marshall v R [2007] NSWCCA 24 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 CASES CITED : R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 R v Huynh [2005] NSWCCA 220 R v MAK; R v MSK [2006] NSWCCA 381 R v Ponfield, In the Matter of the Attorney-General's Application (No 1) Under s26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; (1999) 48 NSWLR 327 PARTIES: Jamie Scott McKillop (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2008/11023 COUNSEL: R Button SC (Applicant) M Cinque (Respondent) SOLICITORS: Legal Aid Commission of NSW (Applicant) Office of the Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11023 LOWER COURT JUDICIAL OFFICER: Conlon DCJ LOWER COURT DATE OF DECISION: 16 December 2008 IN THE COURT OF CRIMINAL APPEAL 2008/11023 McCLELLAN CJ at CL JAMES J ROTHMAN J 11 JUNE 2010 McKILLOP, Jamie Scott v R Judgment 1 McCLELLAN CJ at CL: I agree with Rothman J. 2 JAMES J: I agree with Rothman J. 3 ROTHMAN J: Jamie Scott McKillop appeals a sentence imposed upon him by his Honour Judge Conlon SC on 16 December 2008. On that date, his Honour imposed an overall sentence of a non-parole period of 12 years' imprisonment, as part of an overall sentence of 17 years. The overall sentence was imposed for 15 separate offences of break enter and steal and/or break enter and steal in circumstances of aggravation, contrary to s 112(1) and s 112(2) of the Crimes Act 1900. The maximum sentence for each of those offences is 14 years and 20 years respectively, with the aggravated offence carrying a standard non-parole period of 5 years' imprisonment. 4 Mr McKillop is a professional burglar. The search warrant executed on his premises retrieved money and property in excess of $1.9 million, all of which had been stolen from a variety of premises. Apart from the 15 offences with which Mr McKillop was charged, he listed on a Form 1 to one or more offences, a further 139 offences, which he asked the sentencing judge to take into account in determining the appropriate sentence. 53 of those Form 1 offences (and offences 5, 6 and 7 on the indictment) were committed during the currency of a suspended sentence. There is little doubt that Mr McKillop required condign punishment that reflected the need for personal deterrence and protection of the community. 5 The grounds upon which Mr McKillop originally appealed (and/or sought leave to appeal) are: (1) The sentencing judge erred in his application of the doctrine of totality; (2) The sentencing judge erred in his method in accumulation of the sentences; and (3) The total sentence imposed is manifestly excessive. Facts 6 Manifestly, the 3 grounds of appeal are related and, although two were abandoned as separate grounds, will be dealt with together. Before dealing with the sentence, I will repeat the facts as summarised by his Honour from the Agreed Statement of Facts, Exhibit A in the sentencing proceedings. His Honour said: "On Sunday 19 November 2006 about 4pm police attended the Correctional Centre at Unanderra where the offender had been undertaking weekend detention. This led to arrest and after obtaining a search warrant they attended the offender's address at 44 Langson Avenue, Figtree. Due to the large volume of suspected stolen property at this location the search warrant was extended through to Wednesday 22 November 2006. There were approximately four thousand five hundred items seized and it was later confirmed that there was a large amount of stolen property from break and enters to which the offender was linked by means of DNA. The offender declined to be interviewed. As a result of the offences committed by the offender over this period of time there was in excess of $1.9 million worth of monies and property stolen. Count 1 in September 2001 involved the offender gaining entry to the ground floor attached garage by cutting off padlocks on the doors. The value of the property stolen was approximately $25,000. In counts 2, 3 and 4 entry was gained to the various premises by either forcing open locked doors and or windows. He ransacked every room in the house and large amounts of property were taken valued respectively at approximately $32,000 dollars, $32,000 and over $100,000 dollars. Count 5 is a count of aggravated break, enter and steal. On 4 June 2005 the offender cut a hole in the back screen door and reaching in, unlocked the door. The sixty five year old victim, Mr Ken Sweeney, who is almost blind, was home alone. The victim awoke about 1am to go to the bathroom and as he got out of bed stepped on to his bedside table drawer which was on the floor. Thinking he must have removed the drawer during his sleep he went back to bed. He woke again at 3am to rustling noises and realising that there was someone in his home he rang the police. Whilst on the phone to the police he heard the offender running out the back door. It appeared the offender had spent a substantial amount of time in the house and consumed a can of coke whilst he was there. The offender's DNA was later found on the coke can. The home was also ransacked. Property to the value of about $8500 was taken. Counts 6 and 7 are offences of break, enter and steal and were committed in June 2005. Regarding count 6 the victim William Parker aged sixty seven years was home alone doing housework and taking a shower. His house and car keys and wallet were stolen from the lounge room area and then his Holden Rodeo Utility was taken from the carport. Mr Parker found two empty bottles of vodka and orange in the carport area. Later analysis revealed the DNA profile of the offender. A little over 3 weeks later on 1 July 2005 the victim's wallet and personal cards were found on a street in Corrimal. On the same day the victim's daughter located the in tact vehicle on Mt Keira Road. In count 7 entry to residential premises was gained by removing the fly screen and glass window from the frame of a ground floor laundry window. The victims were home with their young children and were upstairs sleeping. The offender had to walk upstairs past those bedrooms to reach the living area where the victim's handbag was located and stolen. Crime scene officers located a cigarette butt near the laundry window that was later analysed revealing the offender's DNA. Counts 9,10 and 11 are aggravated break, enter and steal offences occurring in September 2005, October 2005 and March 2006 respectively. In count 9 the offender cut a hole in a flyscreen of a front security door and then manipulating the lock opened the door. Ms Evelyn Raymond was home in bed at the time. Her handbag was taken from the dining room and keys inside the bag were used to unlock and take her motor vehicle from the carport. Ms Raymond looked out the window and saw her car being reversed out of the driveway. About four days later the car was located with keys in the ignition. Count 10 involved the jemmying of a rear wooden framed glass door. The seventy three year old victim, Ms Gem Flood, was home alone sleeping in her bedroom. The premises were ransacked. All the kitchen drawers and cupboards had been gone through. The victim's wallet was taken from the kitchen as were her car keys. Approximately four days later the car was recovered in tact but in a very dirty condition. In count 11 access was gained by jemmying a rear window. The offender entered the bedroom of eighty four year old Nancy Akitt. She woke to the noise of the offender going through her dresser drawers. The offender was using a small torch. Due to fear the victim remained still so as not to disturb the offender and alert him to the fact that she was awake. She coughed and the offender quickly left the room. However the offender again returned to the victim's bedroom and continued to go through the drawers. Every room in the house apart from the toilet and bathroom were ransacked. Cash and bankcards were taken as well as car keys. Her car was also stolen and several days later was located by police at Mt Ousley. A Berri Juice bottle was found in the car and later revealed the offender's DNA. Counts 8,12,13,14 and 15 are counts of break, enter and steal. Count 8 occurred on September 2005 and involved the ransacking of the premises. A partially consumed Krispy Kreme Donut was left in the kitchen. The offender's DNA was located. A large amount of property to the value of approximately $40,000 was stolen. Counts 12 through to 15 occurred from April 2006 to October 2006. Count 12 involved the taking of property valued at approximately $123,000, count 13 approximately $42,000 and count 14 approximately $40,000. In count 15 the premises had an alarm and the phone line running to the house was cut causing the alarm not to work. Entry was gained by forcing the lock on the ground floor glass sliding door. A chair was used to stand on and disable and remove the alarm speaker. Two alarm sensors were removed and the control box for the alarm concealed inside the linen cupboard was opened and disabled. Every room was ransacked. A floor safe which was bolted to the floor in a spare room wardrobe was pulled up from the concrete floor using a fencing bar taken from the workshop. The safe, assorted jewellery and other household items were stolen as was the victims Honda Accord. Several weeks after the offence the car was found in tact." 7 His Honour, at page 9 of the Remarks on Sentence, set out Mr McKillop's subjective circumstances. At the time of sentence, he was 37 years of age and, with a degree of understatement, his Honour remarked that Mr McKillop's "criminal record is not one that would entitle him to leniency". His Honour took account of the pre-sentence reports, the psychologist reports and the background material contained therein. He referred to a not-disadvantaged background, the support of his family, which support continues, his schooling and apprenticeship courses. His Honour also referred to his drug history and his alleged addiction to gambling. His Honour remarked that while Mr McKillop "was drug affected in respect of all of his offending it is also apparent that he maintained the ability to continue working throughout significant periods of his drug addiction and it is also apparent by the manner in which he conducted himself within these premises for considerable periods of time that he could hardly be said to be totally out of control." (Remarks on Sentence, pages 11-12.) 8 I would add to the foregoing that the alleged addiction to gambling was not such that it prevented Mr McKillop from accumulating significant wealth. It is, again with a degree of understatement, unusual for a person to be able to accumulate $1.9 million worth of goods, in any circumstances. Grounds of Appeal and Remarks of Sentencing Judge 9 As already stated and set out, the Notice of Appeal raised three Grounds of Appeal, each of which alleges that Conlon DCJ imposed too heavy a sentence on Mr McKillop. 10 At the hearing of the appeal, senior counsel for Mr McKillop sought to agitate only the ground of manifest excess, utilising the first two grounds (recited above) as particulars of the third (and only remaining) ground. 11 Further, senior counsel raised five particular matters that ought be taken into account in assessing whether the sentence was manifestly excessive. They were: (a) that the crimes were crimes of compulsion; (b) the absence of a significant criminal history; (c) related to (a) above, that Mr McKillop wanted to be caught, which disclosed the element of compulsion; (d) that, even though a huge quantity of goods was stolen, much of it was recovered; and (e) that Mr McKillop had been troubled for a considerable period. 12 The Judge described his sentencing task as "very difficult" (Remarks on Sentence, page 5). And, again, that is an accurate, if not understated, assessment of the task before him. With great respect to his Honour, the sentencing judge, there can be no criticism of the principles recited by his Honour as applicable to the sentencing process. His Honour, correctly, stated the principles appropriate for determining the seriousness of a break enter and steal charge, including in its aggravated form, by recital of appropriate passages from judgments of this Court, namely, R v Huynh [2005] NSWCCA 220 at [26], [27], and [29], per Simpson J, with whom Barr and Latham JJ concurred. It is appropriate to repeat those three paragraphs: "[26] The applicant challenges the judge's assessment of the offence as being towards the middle of the range of gravity of offences of its kind. In support of this ground, counsel for the applicant pointed out that 'a serious indictable offence' is defined in s4 of the Crimes Act as one punishable by imprisonment for life or for a term of five years or more. The 'serious indictable offence' that the applicant committed was larceny. That offence carries a maximum penalty of imprisonment for five years. The argument was that, since five years is at the very bottom of the range of sentences which brings an offence within s112(2), and since the subsection is capable of encompassing much more serious offences, such as sexual assault, or any of a variety of offences of violence, it is unrealistic to classify a s112(2) offence where the 'serious indictable offence' is larceny, as in the middle of the range. [27] I do not accept the applicant's argument. The assessment of where the offence lies in the range of offences of its type is to be made by reference to all of the facts and circumstances of the offence, and to the range of offences of its kind which come before the court. One circumstance which is here of relevance in that assessment is the quantity and value of the property stolen. It is not to the point that the property was recovered. It was, in fact, stolen, before being recovered. The fact that the maximum penalty for stealing barely takes that offence into s112(2) does not of itself determine where the offence lies in the scale of gravity of offences against s112(2). Certainly, one might ordinarily expect that offences involving violence would be regarded as more serious than stealing. But that does not preclude a finding that an offence under s112(2), where the 'serious indictable offence' is larceny, being classified as in the middle of the range. … [29] Circumstances of aggravation are defined in s105A, and include that the offender is in company; that he/she is armed with an offensive weapon or implement; that he/she uses corporal violence on any person; that he/she maliciously inflicts actual bodily harm on any person; that he/she deprives any person of his/her liberty; and that he/she knows that there is a person (or persons) in the place where the offence is committed. Again, in my opinion, the assessment of objective gravity must be made by reference to the particular facts of the case. There is no gradation of the circumstances of aggravation set out in s105A. In saying this, I would accept that, generally speaking, certain of the circumstances of aggravation specified would, as a matter of common sense, appear to be more serious than others. One would expect that being armed with an offensive weapon, for example, or the use of corporal violence, or deprivation of liberty, would ordinarily, be regarded as more serious than committing an offence in company. But all depends upon the particular circumstances of the individual case." 13 His Honour the sentencing judge also set out the statement by the Court in Marshall v R [2007] NSWCCA 24 (14 February 2007) where the Court (Howie J, with whom McClellan CJ at CL and Simpson J concurred) said: "[39] As to the aggravating feature of knowing that a person or person is present in the premises, matters of relevance will be the type of person present in the premises, for example whether there was a child or some other vulnerable person present, and whether the offender knew that the person or persons in the premises were particularly vulnerable. The time of day will be relevant so that if it is late at night, when the persons in the premises are likely to be asleep, this might indicate that the offence is more serious because the persons are for that reason more vulnerable." 14 His Honour then referred to the guideline judgment in R v Ponfield, In the Matter of the Attorney-General's Application (No 1) Under s26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; (1999) 48 NSWLR 327 and the standard non-parole period for the aggravated offences. Indeed, the Grounds of Appeal do not make complaint about the manner in which his Honour the sentencing judge dealt with each individual offence. Rather, the complaint is that his Honour's combination of sentences led to a manifest excess, in and of itself, or because of a failure to apply properly the doctrine of totality and/or because of error in the method of accumulation of the sentences. 15 His Honour dealt with the capacity of Mr McKillop to effect rehabilitation. He referred to his participation in the MERIT Program and his continued offending, even whilst on conditional liberty. 16 His Honour described the effect that the MERIT Program had on Mr McKillop as having "hardly caused a ripple in the continuation of his criminal offending". And, notwithstanding his Honour's opinion that Mr McKillop had given little consideration to the extraordinary damage he has done to the lives of so many people, he was prepared, given his conduct or certain aspects thereof, to regard such programmes as "indicating at least some evidence of remorse". His Honour took into account the pleas of guilty and the utilitarian benefit, which no doubt is high, given that the law enforcement authorities have been saved the trouble and expense of conducting over 150 criminal trials. In any event, he allowed a 25% discount for that utilitarian benefit, which is the highest discount allowable under the principles to be applied. 17 Lastly, his Honour took into account the proper principles to be applied in dealing with Form 1 offences and remarked that the sentence imposed on any particular sentence could not go beyond that which was available under the primary charge, but could be longer than would have been imposed, if the primary sentence had stood alone. Further, again correctly, his Honour recited the principle that the additional penalty may sometimes be substantial. In this case, there is an extraordinary number of offences that are contained within the From 1. His Honour recited a passage from the judgment of Wood CJ at CL in R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152, in which his Honour said: "[31] There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose." ( Bavadra , supra, at [31], per Wood CJ at CL with whom Beazley JA and G James J concurred.) 18 His Honour referred to the purposes of sentencing and to the principles established by the High Court of Australia in Pearce v R [1998] HCA 57; (1998) 194 CLR 610, in which the High Court made clear that, in ordinary circumstances, an appropriate sentence should be fixed for each individual offence and the totality determined by the level of accumulation of the sentences to be imposed. 19 As stated, his Honour imposed an overall sentence of 17 years with a non-parole period of 12 years expiring on 18 November 2018. His Honour structured that sentence in the following way: Count 1: Break enter and commit serious indictable offence (s 112(1) of the Crimes Act 1900) A fixed term of imprisonment of 2 years from 19 November 2006 and to expire on 19 November 2008; Counts 2, 3 and 4: Break enter and commit serious indictable offence (s 112(1) of the Crimes Act 1900) A fixed term of imprisonment of 3 years on each count to date from 19 November 2007 and to expire on 18 November 2010; Counts 6 and 7: Aggravated break enter and commit serious indictable offence, namely stealing (s 112(2) of the Crimes Act 1900) A non-parole period of 4 years commencing 19 November 2008 and to expire on 18 November 2012, with the remainder of the term being a term of imprisonment of 2 years expiring on 18 November 2014; Counts 9, 10 and 11: Aggravated break enter and commit serious indictable offence (s 112(2) of the Crimes Act 1900) A non-parole period of 4 years commencing 19 November 2008 and to expire on 18 November 2012, with an additional term of 2 years expiring on 18 November 2016; Counts 8, 12, 13, 14 and 15: Break enter and commit serious indictable offence (s 112(1) of the Crimes Act 1900) A non-parole period of 3 years commencing 19 November 2012 and expiring 18 November 2015, with an additional term of 3 years expiring on 18 November 2018; Count 5: Aggravated break enter and commit serious indictable offence, namely stealing (s 112(2) of the Crimes Act 1900) A non-parole period of 5 years commencing 19 November 2013 and to expire on 18 November 2018, with an additional term of 5 years expiring on 18 November 2023. In respect of Count 5, his Honour took into account the 139 further matters on the Form 1 Schedule. Consideration 20 As I have sought to make clear during the course of discussing the grounds of appeal and the sentencing judge's remarks on sentence, there is no identifiable error in the sentence remarks or the sentence imposed. Manifest excess (or inadequacy), more than any other ground, requires an exercise in instinctive or intuitive synthesis. 21 The five "particulars" agitated in oral argument, and summarised above, do not take the exercise any further. 22 The alleged "compulsion" to which counsel referred (particulars (a) and (c) above) is based on no evidence of an expert, but relies on the Court inferring the compulsion, because of the conduct of Mr McKillop and statements he made to the psychiatrist. Frankly, it is not surprising that Mr McKillop was not concerned about leaving his DNA at the scene. After all, he had committed 154 offences without apprehension. 23 Further, such a submission, to be accepted, requires some basis in evidence, of which there is none. There is certainly evidence of depression, which is supported by expert opinion, but, other than Mr McKillop's own assertion, repeated by the sentencing judge (ROS 10-11) without a finding of fact on the issue, there is no medical or psychological evidence that Mr McKillop was acting on compulsion. 24 Whatever has turned Mr McKillop into a professional burglar, whether it be greed or some childhood occurrence, remains a mystery. There is no evidence of any psychological illness or condition that should ameliorate his offending, and he describes his upbringing as "normal", if not privileged. 25 It is true, as is submitted, Mr McKillop's antecedent criminal history is "surprisingly short". The surprise arises from the necessary inference that he has been a professional burglar, but has remained at large without apprehension. Further, Mr McKillop committed offences while on conditional liberty (suspended sentence) and whilst undertaking the MERIT Program. 26 Mr McKillop's conduct requires significant personal deterrence, regardless of the reasons and/or excuses put forward, or any perceived compulsion or desire to be caught, or the absence of a long criminal history. Moreover, the recovery of a large amount of the stolen goods does not significantly affect the gravity of these offences. 27 It should be pointed out that the maximum term of imprisonment for a contravention of s 112(1) of the Crimes Act, break enter and commit serious indictable offence, is 14 years' imprisonment. The maximum sentence for the aggravated form of break enter and commit a serious indictable offence, being a contravention of s 112(2) of the Crimes Act, is imprisonment for 20 years, and that aggravated form carries a standard non-parole period of 5 years' imprisonment. 28 His Honour the sentencing judge, faced with a very different sentencing exercise, structured the sentence in a manner to which the High Court in Pearce, supra, referred. 29 Initially, Mr McKillop, or his counsel, in written submissions, pointed to an irrationality in the differentiation in sentences between some of the charges. This is a counsel of perfection, which was abandoned in oral submission. 30 His Honour had before him an extremely difficult sentencing exercise, involving over 150 offences of break enter and steal. The total sentence imposed, for all of the sentences, is less than the maximum available for one aggravated break enter and steal. Of course, to his credit, Mr McKillop did not engage in any violence, but he did, quite adeptly, rob elderly people of their goods over an extremely extended period. And none of the individual offences come close to the maximum sentence imposed by the legislature and it is only when one takes into account over 150 offences that one is faced with an overall sentence that is close to the maximum sentence available for an aggravated offence of this kind. A just and appropriate measure of the total criminality involved (see Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 307-308, per McHugh J), for a total of 15 offences, one of which had regard to 139 uncharged offences, is not offended by a sentence of this magnitude. The principles stated by this Court in R v MAK; R v MSK [2006] NSWCCA 381 continue to apply and are not breached by an offence structured in the manner that his Honour has done. 31 This Court is on record as to the use of statistics. Statistics cannot be used to replace the maximum sentence prescribed by parliament. The mere fact that statistics do not disclose a sentence of this magnitude in relation to these offences has, one would think, far more to do with the fact that it would be rare, if not unique, for a sentencing judge to be required to sentence for 25 charges and take into account another 139 offences. It may be instructive to ask the question that, in such circumstances, if the total sentence imposed is not near the maximum for one such charge, in circumstances where one is taking into account, one way or the other, over 150 offences, when would the maximum ever be reached? 32 Mr McKillop is 37 years of age. Depending upon his behaviour in prison, he may be released when he is 49 years of age. This is a heavy sentence, but it is not crushing. It is a sentence that befits the number of serious offences committed by Mr McKillop and the degree to which his behaviour must be punished and future offending must be deterred. 33 I would propose that the Court make the following orders: (i) Leave to appeal be granted; (ii) Appeal be dismissed. ********** 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.