Allen v R [2013] NSWCCA 173

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Allen v R [2013] NSWCCA 173 Hearing dates: 15 July 2013 Decision date: 24 July 2013 Before: Hoeben CJ at CL at [1] McCallum J at [4] Schmidt J at [32] Decision: Time within which the notice of application for leave to appeal may be filed extended; leave to appeal be granted; that the appeal be dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - aggravated break and enter with intent - whether manifestly excessive Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1900 Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 In the matter of the Attorney-General's Application [No 1] under s 26 of the Criminal Appeal Act; R v Ponfield & Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327 Kean v R [2011] NSWCCA 136 Category: Principal judgment Parties: Warren Allen (applicant) Regina (respondent) Representation: Counsel: K H Averre (Applicant) V Lydiard (Crown) Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (Crown) File Number(s): 2011/57590 Publication restriction: None Decision under appeal Date of Decision: 2011-09-01 00:00:00 Before: Coolahan DCJ File Number(s): 2011/57590

Judgment 1Hoeben CJ at CL: I agree with McCallum J. 2In an application for leave to appeal based on a ground of manifest excess, it is not particularly helpful to make submissions based on a decision of this Court in another case, the facts of which appear to be similar. As McCallum J has made clear in her analysis of the decision in Kean v R [2011] NSWCCA 136, the facts of that case were quite different to the facts in this case, albeit there appeared to be a superficial similarity. As her Honour pointed out, a significant point of distinction was that two offences were involved in that case so that apart from anything else, the principal of totality rendered its comparison with this case of limited value. 3It needs to be remembered that sentencing involves the exercise of a broad discretion by the primary judge. There is no right or wrong sentence. There is a range of sentences which is appropriate for a particular offence or offences. Provided a sentence is within that range, and it has not otherwise been established that the sentence is "unreasonable or plainly unjust", this Court should not interfere. That would be the situation even if the facts in Kean had been identical to the facts in this case." 4McCallum J: Warren Allen seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to an offence of breaking and entering a dwelling house and committing a serious indictable offence (stealing) in circumstances of aggravation, contrary to section 112(2) of the Crimes Act 1900. The circumstance of aggravation was that he knew there were people inside the dwelling house. 5The maximum penalty for the aggravated offence is 20 years imprisonment. The offence carries a standard non-parole period of 5 years under s 54A of the Crimes (Sentencing Procedure) Act 1900. When dealing with the applicant, the Court took into account a further offence on a Form 1 of being in possession of housebreaking implements contrary to s 114(1)(b) of the Crimes Act, as allowed under s 33 of the Crimes (Sentencing Procedure) Act. The offence on the Form 1 related to the applicant's possession of two screwdrivers and two torches at the time of the housebreaking offence. 6The applicant was sentenced to a term of imprisonment with a non-parole period of 2 years and 3 months and a balance of term of 1 year and 6 months, giving a total term of 3 years and 9 months. 7The present application was not brought within the time allowed under s 10 of the Criminal Appeal Act 1912. The applicant was sentenced on 1 September 2011. The notice of application for leave to appeal was not filed until 5 April 2013. In my view, however, the delay is adequately explained in an affidavit affirmed by the applicant. He believed he had taken the necessary steps to commence an appeal within four days after commencing to serve his sentence. Unfortunately, a series of administrative errors within the prison system coupled with an unfounded reassurance which discouraged the applicant from making more persistent inquiries resulted in his not learning until August last year that no application had in fact been filed with the Court. In the circumstances, the Crown did not oppose an extension of the time within which the application could be brought. In my view, it is appropriate to make that order. 8The circumstances of the offence are summarised in a statement of facts tendered at the proceedings on sentence. The offence occurred at the home of a married couple in Lambton in the State of New South Wales. At some time before midnight on 21 February 2011, the husband found the applicant at the front of the house trying to hide against the side of the house. The husband said, "What are you doing?" The offender swore and left. The husband then found that the flyscreen of the front bedroom window had been removed and that there were footprints on the bed. The wife's handbag was missing. The handbag contained about $170 in cash, a mobile phone and personal cards including a bankcard. Police located the applicant with the assistance of a police dog. At the time he was found by police, the applicant was carrying a black sports bag which had the wife's phone and bankcard in it, together with two screwdrivers and two torches (forming the basis for the offence on the Form 1). 9The applicant has an extremely lengthy criminal record for his age. He was aged 22 years at the time sentence was passed. His record includes over 50 housebreaking offences as a child. The present offence represented his 10th conviction for a housebreaking offence as an adult. There are many other convictions as well. The applicant was on parole for an offence of breaking and entering with intent to steal at the time of the present offence. 10Following the commission of the present offence, the applicant's parole was revoked with effect from 22 February 2011. The balance of his parole expired on 1 August 2011. The sentencing judge fixed the sentence to commence after the expiration of that period. The first date on which the applicant is eligible for release to parole is 1 November 2013. 11In his remarks on sentence, the sentencing judge noted that any offence of aggravated breaking, entering and stealing must be regarded as serious, having regard to the penalties provided. His Honour accepted, however, that the objective seriousness of the present offence falls towards the lower end of the scale. His Honour noted that there was no violence offered to any person, that no person was put in actual danger and that the offence appeared to have been by and large unplanned. 12The judge noted the applicant's persistence in committing offences of this type and the fact that he was on parole for a similar offence at the time of the present offence. 13The applicant gave evidence at the proceedings on sentence. The judge had regard to that evidence, noting that the applicant's parents had separated when he was young and that he had been shuttled between his mother and his father, which evidently interfered with his education. The applicant left school at the start of year 8. He gave evidence which the judge evidently accepted that he had made some efforts to teach himself to read and write whilst in juvenile justice centres and in jail. He has spent only six months out of jail since his 18th birthday. He had a brother who committed suicide whilst in custody. 14The judge noted that the applicant had explained his criminal history by reference to substance abuse problems (predominantly alcohol but also a range of drugs), which the applicant had been unsuccessful in defeating. 15The judge generally accepted the applicant's evidence and, in particular, described him as having some but not complete insight. His Honour allowed a discount of 25% to reflect the utilitarian value of the plea of guilty, which was entered at the first available opportunity. 16The judge noted the aggravating factor of the applicant's having been on parole for a similar offence at the time of the present offence. His Honour also noted the applicant's unenviable record, which his Honour held raised the issue of specific deterrence. 17By way of mitigating factors, the judge had regard to the fact that the loss occasioned by the offence was not substantial and the evident absence of any significant planning. His Honour accepted that the applicant's expression of remorse in respect of the offence was genuine. For obvious reasons, however, his Honour was circumspect as to the applicant's prospects of rehabilitation. Having regard to the applicant's young age and his plain need for intense supervision, the judge made a finding of special circumstances warranting a departure from the ratio of the non-parole period to the balance of term otherwise required under s 44(2) of the Crimes (Sentencing Procedure) Act. 18The judge considered that, since the present offence was totally unrelated to the offence for which the applicant was on parole, the present sentence should commence at the expiration of that period. In reaching that decision, his Honour stated that he had had regard to the principle of totality. His Honour accepted that the Form 1 matter was serious but noted that it was an offence which went "hand in hand" with the principal offence. 19The sole ground of appeal is that the sentence was manifestly excessive. 20The applicant accepted that, in order to make out a ground that a sentence is manifestly excessive, it is necessary to persuade this Court that the sentence was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325. This Court has on many occasions emphasised the discipline that must be exercised by an appellate court in reaching a conclusion on that issue. It is not for this Court to substitute its own discretion for that properly exercised by a sentencing judge. 21The breadth of the discretion of the sentencing judge in dealing with housebreaking offences is highlighted by the guideline judgment of this Court in In the matter of the Attorney-General's Application [No 1] under s 26 of the Criminal Appeal Act; R v Ponfield & ors [1999] NSWCCA 435; (1999) 48 NSWLR 327. As noted on behalf of the applicant, the Court in that case declined to issue a guideline expressed in quantitative terms by way of a starting point or sentencing range, instead confining itself to a statement of relevant sentencing considerations: at [43] per Grove J; Spigelman CJ and Sully J agreeing at [1] and [54] respectively. Grove J stated that the Court's principal reason for declining to express a guideline in quantitative terms was the great diversity of circumstances in which the offence is committed. 22I accept, as submitted on behalf of the applicant, that the present offence was towards the lower end of the scale of objective seriousness. The judge sentenced the applicant on that basis. The applicant submitted that the only aggravating factor was the fact of his being on parole at the time of the offending. He submitted that this was "something which had impacted him already in the sense that not only did it serve to aggravate the offending but it also meant that he was to serve a period of imprisonment following the revocation of parole". That submission does no more than to state the facts and relevant principles correctly. An offender who repeats his offending whilst on parole should not expect otherwise. 23The applicant sought to derive some assistance from the statistics published by the Judicial Commission. I do not think a consideration of those statistics is compelling in the present case. 24The applicant also sought to derive some support from the decision of this Court in Kean, which was put forward as being comparable with the present case. One of the offences for which Mr Kean was sentenced was an offence contrary to s 112(2), the facts of which it may be accepted were similar to the facts of the present case. The sentence for that offence was reduced on appeal from 4 years with a non-parole period of 2 years and 6 months to 3 years with a non-parole period of 2 years and 3 months. True comparison, however, is difficult. 25The applicant's reliance on Kean was based in part on the contention that it was a case in which there was no patent error, only a conclusion that the starting point was manifestly excessive. It is correct that all three members of the Court were satisfied that the sentences imposed for two of the offences including the s 112(2) offence were manifestly excessive: at [48] per Adams J; Campbell JA and R S Hulme J agreeing at [4] and [14] respectively. 26However, two members of the Court also approached the matter as one in which a ground alleging patent error was made out in addition to the ground of manifest excess. The error complained of in ground 1 was that the learned sentencing judge had erred "in failing to have any or proper regard to the fact that [the two counts other than the s 112(2) offence] could have been dealt with in the Local Court and failed to have any or proper regard to the maximum penalty in such a case". 27All three members of the Court found that his Honour had overlooked that factor. But Adams J concluded that, although the judge had erred in that respect, "this did not prejudice the applicant" (since the need to protect the community in light of the offender's lengthy record meant that the jurisdictional limit in the Local Court was inadequate). His Honour would accordingly have dismissed ground 1. 28Campbell JA and R S Hulme J upheld ground 1: at [6] and [17] respectively. Campbell JA said: When there has been an error of principle by the trial judge in the course of sentencing, and I am unable to reach a positive conclusion that that error has not affected the sentence the judge imposed, the proper course, in my view, would be to uphold the appeal concerning ground 1. However, the only effect of my reaching that conclusion is that ground 1 and ground 2 each provide an independent reason for resentencing the applicant. 29In any event, the significance of the success of the manifest excess ground is diluted in the present context by the fact that there were two sentences under consideration. The sentence imposed on the s 112(2) offence was four years but there was also an offence of breaking, entering and stealing from commercial premises for which the starting point (before discounting for the plea of guilty) was imprisonment for six years and eight months. The effective aggregate sentence was imprisonment for six years and six months commencing with a non-parole period of four years. 30The applicant's submissions have not persuaded me that the present sentence is unreasonable or plainly unjust. I would accept that the sentence was stern, particularly for a man so young. Sternness alone is no warrant for supplanting the exercise of a sentencing judge's discretion with a more merciful approach. I am not persuaded that the sentence imposed fell outside the permissible range. That is particularly so having regard to the fact that the applicant was on parole at the time of the offence and the fact that it was well open to the sentencing judge to place considerable weight on the need for specific deterrence having regard to the applicant's criminal history. 31The orders I propose are: (1)That the time within which the notice of application for leave to appeal may be filed be extended to 10 April 2013; (2)That leave to appeal be granted; (3)That the appeal be dismissed. 32Schmidt J: I agree with McCallum J and also with the additional remarks of Hoeben CJ at CL.