Brennan v R [2011] NSWCCA 278

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brennan v R [2011] NSWCCA 278 Hearing dates: 15 November 2011 Decision date: 16 December 2011 Before: Whealy JA, Simpson J, Hislop J Decision: 1. Grant leave to appeal in respect of the sentence on Count 1. 2. Quash the sentence on Count 1. 3. In lieu thereof, sentence the applicant on Count 1 to a non parole period of three years six months imprisonment commencing on 26 March 2010 and expiring on 25 September 2013 with a balance of term of 14 months to commence on 26 September 2013 and expire on 25 November 2014. 4. Affirm the sentence on Count 2. Legislation Cited: Crimes Act 1900 Cases Cited: Kershaw v R [2009] NSWCCA 19 Category: Principal judgment Parties: Christopher John Brennan v R Representation: G. Corr (Applicant) T. Smith (Respondent) Aboriginal Legal Service (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/263112 Decision under appeal Date of Decision: 2010-09-03 00:00:00 Before: McLoughlin DCJ File Number(s): 2009/263112

Judgment 1WHEALY JA : I agree with Hislop J. 2SIMPSON J : I agree with Hislop J. 3HISLOP J : The applicant was charged on indictment on the following counts: Count 1: The applicant, in circumstances of aggravation, did break and enter a dwelling house and therein did intimidate an occupant contrary to s 112(2) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment. A standard non parole period of five years is applicable to this offence. Count 2: The applicant did attempt to steal a motor vehicle the property of another contrary to s 154F/344A of the Crimes Act 1900. The maximum penalty for this offence is ten years imprisonment. The applicant pleaded guilty to each count. 4The applicant was sentenced, as to Count 1, to a non parole period of four years two months imprisonment to commence on 26 March 2010 and expire on 25 May 2014, with a balance of term of 18 months to commence on 26 May 2014 and expire on 25 November 2015. 5The applicant was sentenced, as to Count 2, to a non parole period of 12 months imprisonment commencing on 26 November 2009 and expiring on 25 November 2010 with a balance of term of four months to commence on 26 November 2010 and expire on 25 March 2011. 6In sentencing the applicant the court took into account four offences on a Form 1. The offences were assault occasioning actual bodily harm, assault, reckless damage and larceny. Each of these offences occurred at the same time and place as counts 1 and 2. 7The applicant has sought leave to appeal against sentence on the ground that "His Honour erred in relying upon an incorrect standard non parole as a guidepost when sentencing the Appellant." 8His Honour, in his remarks on sentence, stated that the standard non parole period for count 1 was seven years. It was conceded by the respondent that his Honour had been misinformed by counsel for the respondent and the standard non parole period was, in fact, five years. 9His Honour, in his remarks on sentence, said: "I regard the first count as being just below the middle of any scale constructed for such offences... The Court recognises the standard non parole period for the first count as applicable for mid scale offences after trial and as a guidepost for sentencing in other matters such as this." 10The applicant relied upon the decision of this court in Kershaw v R [2009] NSWCCA 19 where, in similar circumstances, the court said: "[15] Nevertheless, it is plain that his Honour had reference to a benchmark which was higher than that prescribed by statute. Although it cannot be determined that some arithmetical proportion of his assessment is reflected by his use of the inflated incorrect standard non-parole period it should be concluded that, had the lesser correct figure been used for reference, the assessment would have been less to some extent. The applicant has succeeded in demonstrating a material error and there should be some downward adjustment of sentence." 11At the hearing of the leave application the respondent conceded there was a material error and did not oppose the application. 12In the circumstances leave to appeal should be granted as to the sentence on Count 1, that sentence should be quashed and the applicant re-sentenced. 13The agreed facts were stated by his Honour as follows: "The circumstances giving rise to the commission of the offence are that at the time of the offence Matthew Urquhart, his girlfriend Kelly Fawcett and the offender and Kaleb Dibben, resided at ... Port Macquarie. Mr Urquhart was mates with the offender and knew that the offender wanted to buy his car from him. He inspected the car and made an offer which was rejected. Mr Urquhart was also aware that Melanie Munn was the offender's girlfriend and she drove a white Honda CRV four wheel drive. At about 12 noon on Saturday 14 November 2009 Mr Urquhart saw the offender at Flynns Beach and spoke to him. That evening Mr Urquhart went to bed at about 9pm with Ms Fawcett. Ms Dibben was still up and the front timber door of the unit was closed and believed to be locked. At about 12.30am on 15 November Mr Urquhart and Ms Fawcett were awoken by soft knocking on the front timber door. Mr Urquhart stayed in bed as he thought it was one of his mates and hoped they would go away. He then heard the sound of his car door being opened, that being a blue Holden VL Commodore, which may have been unlocked. Mr Urquhart went to the lounge room, turned the outside light on. Mr Urquhart looked outside underneath a blind and saw the offender sitting in the driver's seat of his car with the door closed. Ms Fawcett also saw the offender. The offender looked as if he was trying to hot wire the car. He had a screw driver in his hand. The offender jumped out of the car and opened the door then walked towards the door. Mr Urquhart then heard one hit on the outside of the timber door and the door flung open inwards hitting him hard in the forehead, dazing him and causing a lump and graze to his forehead. The timber doorframe split where the offender had forced it. Mr Urquhart tried to push against the door and keep out the offender and said 'Fuck off' as he did not want the offender in his house. Mr Urquhart could see the offender had something in his hand which looked like a screwdriver, approximately thirty centimetres long, and Ms Fawcett saw what looked like a metal rod in his hand. The offender then forced his way inside the house. Mr Urquhart was scared. Mr Urquhart then ran out of the front door into Hill Street and Ms Fawcett had jumped out of the bed and saw the accused in the lounge room so she ran back into her bedroom. The offender followed and said to her 'Kelly, I'm not going to hurt you. Don't call the cops. Where's your money', Ms Dibben then woke up and stood in the doorway of her room. The offender yelled 'Get Nat on the phone. I want to talk to him.' Ms Fawcett said she did not have a phone and the offender yelled out 'Mel, get my phone.' The offender then went outside followed by Ms Fawcett and noticed the co-accused standing near her car parked across a driveway. The offender went back into the unit and the co-offender got into her car and parked it next to Mr Urquhart's. Mr Urquhart then decided to go back to the unit as he had left his phone inside and could not find a house with a light on to make a phone call. On his way back Mr Urquhart saw Ms Fawcett and she motioned him to go back down the street away from the unit. Ms Fawcett then went back to the unit to get Ms Dibben. Ms Dibben saw the co-offender hand the offender a screwdriver. When Ms Fawcett returned to the unit she could see the offender at Mr Urquhart's car pushing a screwdriver into the ignition barrel. Ms Fawcett said 'Chris, why are you doing this?' and the offender replied 'I want this fucking car'. Ms Fawcett then heard the offender say 'The cops are coming, the cops are coming.' Ms Fawcett saw the offender rip the dash and the top of the steering (as said) out of the car. The offender handed the dash to the co-accused and said 'Put this in the car' which she did. The offender then went back inside the unit, followed by Ms Fawcett. Once inside the unit the offender saw a TV and said 'How do you get this out?' Ms Fawcett replied 'Leave my stuff alone'. The offender turned around and was yelling at Ms Fawcett with his fist in her face, backed up against a wall. Mr Fawcett thought that the offender was going to hit her so she slid down the wall onto the floor. The offender then said 'Where's all your money?' and Ms Fawcett replied 'I don't have any'. The offender was crouched on the floor in the face of Ms Fawcett. Ms Fawcett kept saying 'Don't hurt me, don't hurt me' and was screaming. Ms Dibben also said 'Don't hurt her'. The co-accused Nunn then walked in and said 'Leave her alone, she's just a kid.' The co-offender stood up, grabbed assorted cigarettes and mobile phone from the coffee table and as she walked out the door the offender wiped the light switch with his shirt and the offender and co-offender then left in the co-offender's car." 14His Honour observed the applicant knew what he wanted notwithstanding the significant amount of bourbon and amphetamines he had ingested throughout the day. The applicant said he had been using amphetamines since age 18 and had used other drugs. He was a regular user of alcohol, drinking about one bottle of spirits per day. 15The applicant was born in 1985. The Probation and Parole Officer's pre-sentence report stated: "Mr Brennan is the third of five children borne of a partnership between substance addicted parents who apparently lacked the resources to care and provide for their children; as such the offender and his siblings were declared State Wards in 1987. He was returned to the family home when he was six years of age which coincided with his mother leaving. His remaining childhood years were spent between various family members, foster care and juvenile institutions...Mr Brennan attended Boystown School when he was 10 years old however his poor behaviour brought about expulsion and his schooling ended at that time. His literacy and numeracy are substantially limited and he does not have any significant employment history." 16The reporting Probation and Parole Officer concluded the applicant was a single man who experienced a dysfunctional childhood, an environment that appears to have changed little in his adulthood as reflected by his substantial contact with the criminal justice system. He has not addressed alcohol and other drug issues that likely impact upon his anger management and mental health issues and needs substantial interventions however, his level of insight and motivation to engage in same at this stage is questionable. 17The applicant had an extensive criminal record. His first conviction was recorded in 1996 for stealing a motorcycle. As his Honour the sentencing judge observed: "It is a record which would not allow the Court to extend leniency to the offender. More so when it is seen that many of his convictions have involved matters of violence, intimidation, illegally use motor vehicles, breaking into houses and other property, many of the ingredients of these offences." 18An examining psychiatrist recorded that the applicant informed him he spent eight years in juvenile justice facilities and four years in custody as an adult and had become, in his words, "institutionalised". 19It is appropriate that the applicant receive a limited discount for the late pleas of guilty. I am not persuaded special circumstances should be found. 20His Honour the sentencing judge observed that: "Despite the appalling upbringing of the offender only a lengthy period of imprisonment will satisfy the requirement for general and specific deterrence." I agree . 21I am mindful of the legislative guideposts being the maximum sentence and the standard non parole period. Having regard to those guideposts, the content of the applicant's affidavit affirmed 31 October 2011 and all other relevant factors, I conclude the appropriate sentence on Count 1 is imprisonment for a non parole period of three years six months commencing on 26 March 2010 and expiring on 25 September 2013 with a balance of term of 14 months to commence on 26 September 2013 and expire on 25 November 2014. 22I propose the following Orders: 1. Grant leave to appeal in respect of the sentence on Count 1. 2. Quash the sentence on Count 1. 3. In lieu thereof sentence the applicant on Count 1 to a non parole period of three years six months imprisonment commencing on 26 March 2010 and expiring on 25 September 2013 with a balance of term of 14 months to commence on 26 September 2013 and expire on 25 November 2014. 4. Affirm the sentence on Count 2.