Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Biles v R [2014] NSWCCA 170 Hearing dates: 4 August 2014 Decision date: 04 August 2014 Before: Bathurst CJ; Adams J; R A Hulme J Decision: Leave to appeal against sentence refused Catchwords: CRIMINAL LAW - appeal against sentence - aggravated break enter and steal - failure to advert to finding of remorse in remarks on sentence did not mean it had been overlooked - objective seriousness of offence enhanced by fact of elderly and vulnerable victims - statistics and schedule of cases of limited utility - leave to appeal refused Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Ehrlich v R [2012] NSWCCA 38; 219 A Crim R 415 Geddes v R [2012] NSWCCA 94 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Campbell [2014] NSWCCA 102 R v Dodd (1991) 57 A Crim R 349 R v Huynh [2005] NSWCCA 220 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Stewart v R [2012] NSWCCA 183 Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 Category: Principal judgment Parties: Douglas Biles (Applicant) Regina (Respondent) Representation: Counsel: Ms H Cox (Applicant) Mr N J Adams (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2013/1592 Decision under appeal Date of Decision: 2013-10-09 00:00:00 Before: Toner SC DCJ File Number(s): 2013/1592 Judgment 1THE COURT: Douglas Biles (the applicant) applies for leave to appeal against a sentence that was imposed upon him in the District Court by his Honour Judge Toner SC on 9 October 2013 for an offence of aggravated break, enter and commit serious indictable offence, namely larceny. 2The offence is contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 20 years and there is a standard non-parole period prescribed by the Crimes (Sentencing Procedure) Act 1999 (NSW) of 5 years. 3The sentence imposed was one of 5 years 3 months with a non-parole period of 3 years. It was back-dated to the day of the applicant's arrest, 2 January 2013. It was reduced from what it otherwise would have been (7 years) by 25 percent to give credit for the utilitarian value of the applicant's early plea of guilty. Facts 4The victims of the offence, Mr and Mrs Pike, were a couple aged 85 and 70 who lived in Taree. At around 11.40am on 2 January 2013 they were resting in the bedroom of their home. The front security screen door was locked by the main lock in the middle and two bolt locks at the top and bottom. The main timber door was also locked and closed. 5Mr Pike heard a noise and when he opened his eyes he saw two males barge into the bedroom towards him and his wife. One of the males was the applicant. Mr Pike asked what they were doing but there was no reply. The applicant came around the foot of the bed, close to Mr Pike, and grabbed a bag from a chest of drawers. The bag contained books borrowed from the local library. The co-offender took Mrs Pike's handbag containing $350 in cash, a mobile phone and sundry personal items from a chest of drawers on her side of the bed. She woke and started screaming. She chased the males to the front door. Together with a third offender they fled. 6The police were contacted and, with the benefit of witness observations and descriptions, the offenders were eventually found. They fled into a supermarket but were there arrested. The cash from Mrs Pike's handbag was found in their possession; the handbag had been discarded in the grounds of a school. 7Tendered without objection was a statement by Mr Pike in which in quite emphatic terms he described the distress the offence had caused his wife and himself. For example: "we can never feel safe in our own home ... my wife is traumatised and terrified they will come back again". Personal circumstances of the applicant 8The applicant was aged 21 at the time of the offence. He was born in Brewarrina, the third eldest of his parents' ten children. A Pre-Sentence Report recorded that he was primarily brought up by his maternal aunt and uncle and had minimal contact with his parents and siblings. A report by Dr Richard Furst, forensic psychiatrist, said that he was raised by his father separate from his siblings. 9He was educated to Year 10 level but had limited literacy and numeracy skills. Dr Furst recorded that he appeared to have been emotionally and behaviourally troubled throughout his childhood; he struggled at school and was suspended on numerous occasions. He was influenced by older pro-criminal peers and became involved with the criminal justice system at age 13. 10The applicant's criminal history includes seven offences of a similar nature to the present one as well as sundry others. He was given bonds and probation in his early teenage years but was sentenced to terms of detention at age 16 and 17 on three separate occasions. He moved to live in the Taree area when he was about 17 but continued to offend. He was sentenced to imprisonment in 2010 at age 18 and was returned to gaol upon his parole being revoked the following year because of further offending that brought another term of imprisonment. 11The applicant has been in a relationship for some 5 or 6 years. He and his partner have had five children, two of whom died at birth in 2011. He has no employment history and they have survived on welfare benefits. 12Aside from his association with antisocial peers, abuse of alcohol and drugs seems to have been a major factor underlying his offending behaviour. He drank heavily from the age of 16 and has used heroin, crystal methylamphetamine and OxyContin pills. He has not engaged in any drug or alcohol rehabilitation but told Dr Furst and the author of the Pre-Sentence Report that he was motivated to do so. 13Dr Furst found that the applicant met the criteria for childhood conduct disorder as well as for a substance use disorder (alcohol and opiate dependence). He considered that he is "a man who is immature, copes poorly under stress, is largely estranged from his family of origin, and probably has unresolved grief issues". The latter related to the death of his twin daughters. There was no indication of any major mental illness. Ground 1 - His Honour erred in his application of the Crimes (Sentencing Procedure) Act 1999 14The basis of this ground was made clear in the written submissions of counsel for the applicant. It is that whilst his Honour had made it plain during the proceedings on sentence that he accepted that the applicant was remorseful, he failed to mention it and therefore overlooked it in his remarks on sentence. There is no merit in this. 15The proceedings on sentence were fairly brief. In the course of hearing submissions on the applicant's behalf his Honour said, "I accept he's remorseful. I accept that he accepts responsibility for his crime". 16At the conclusion of submissions by the Crown's representative the judge announced the sentence he intended to impose, namely 5 years 3 months. The applicant's solicitor declined an invitation to be heard further. The judge proceeded immediately to give ex tempore reasons and imposed the sentence he had indicated. 17Considerable caution is usually necessary in having regard to remarks made by a judge during the course of submissions and prior to sentencing as such remarks do not necessarily represent a final and considered view: see, for example, Geddes v R [2012] NSWCCA 94 at [42]. But here the judge made an unequivocal statement accepting in the applicant's favour that he was remorseful and shortly afterwards announced what the sentence would be. The fact that he did not mention remorse again did not mean that remorse was overlooked in the assessment of sentence. Ground 2 - His Honour erred in that he failed to make a finding as to the objective seriousness of the offence contrary to s 112(2) Crimes Act 1900 18The complaint underlying this ground is that while his Honour referred to matters relevant to the objective seriousness of the offence, he did not announce a conclusion as to the level of that seriousness. Authority for the proposition that the assessment of the objective seriousness of an offence remains an essential element of the sentencing process was referred to: R v Dodd (1991) 57 A Crim R 349 at 354; Ehrlich v R [2012] NSWCCA 38; 219 A Crim R 415 at [86] (Johnson J); Stewart v R [2012] NSWCCA 183 at [31], [41] (Button J). To those may be added the more recent case of R v Campbell [2014] NSWCCA 102 at [27]-[29] (Simpson J, Hall J agreeing). 19The written submissions for the applicant listed a number of factors to which the judge had not made reference and asserted that when regard was had to them a finding of "lower end of the scale of seriousness" was called for. 20This ground does not have merit for two reasons. First, as was the case in Stewart v R (see the judgment of Button J at [42]), one may infer from the judge's recitation of the facts and various aggravating factors together with the sentence ultimately imposed that his Honour regarded this an offence of greater seriousness than the applicant now contends. 21Secondly, the experienced criminal practitioner who appeared for the applicant in the District Court made no submission about the level of objective seriousness of the offence aside from a concession that it was "a terrible crime". There was no attempt to identify matters that were relevant to an assessment of seriousness such as the factors listed in the written submissions to this Court. Some relevant matters were referred to in the submissions of the Crown but the solicitor for the applicant did not seek to engage on that topic. Indeed, as has been previously observed, he made no submissions in reply at all after his Honour indicated the sentence he was minded to impose. 22In these circumstances, the factors relevant to an assessment of seriousness relied upon by the applicant in relation to this ground are best left for consideration of the next ground. Ground 3 - The sentence imposed was manifestly excessive 23It was submitted that the sentence is manifestly excessive having regard to the objective seriousness of the offence and the subjective case of the applicant. 24As to the objective seriousness of the offence, the factors identified under the previous ground in support of the proposition that it was at the "lower end of the scale of seriousness" were as follows: The offence committed was larceny. The items stolen were not of particularly great significance. The offence was of brief duration. There was no evidence the applicant or his co-offenders were aware that the victims were elderly or that they were present or in bed asleep, particularly given the time of day (late morning.) The offence appeared to be relatively spontaneous and unplanned. (There was in fact no evidence on this topic.) The applicant was not on any form of conditional liberty. (This is merely the absence of an aggravating factor which does not serve as a mitigating feature.) The applicant and his co-offenders were unarmed. (There was no evidence either way on this topic and, in any event, if they were unarmed, this also was merely the absence of an aggravating factor.) 25Against those matters, however, the objective seriousness of the offence was significantly enhanced by the fact that the victims were elderly and were obviously traumatised by the experience. The safety and security that they should have enjoyed in their own home was breached by offenders who broke through a locked and bolted security screen door and locked front door. It would have been well apparent when the applicant entered the bedroom that it was occupied by an elderly couple but he and his co-offender proceeded regardless to steal property from their close proximity. 26The sentencing judge rightly took into account that the victims were vulnerable because of their age; they were in their own home where they were entitled to feel secure. One can well understand the effect the offence had upon them as indicated in Mr Pike's statement, particularly when they had taken steps to install a security screen door and to lock both it and the front door; as the judge observed, "still that was not enough to protect them". His Honour also took into account that whilst there was no physical violence the presence of the two offenders in their bedroom must have been highly intimidating. 27Offences in s 112 involve breaking entering and committing a serious indictable offence (defined as an offence with a maximum penalty of imprisonment for 5 years or more: s 4(1) Crimes Act). In this case the offence was larceny which is at that threshold. Such an offence can be committed in circumstances of aggravation (i.e. the offence in s 112(2)) where the offender is armed, in company, knows there is someone in the premises entered, or where the offender uses corporal violence, inflicts actual bodily harm or deprives a person of their liberty (s 105A(1) Crimes Act). 28Accordingly, the seriousness of the "serious indictable offence" and the circumstance of aggravation are matters pointing to the offence being less serious, in a general sense, than others that may fall within s 112(2). The words "in a general sense" must be emphasised because it all depends upon the circumstances of the particular case: R v Huynh [2005] NSWCCA 220 at [29] (Simpson J). The features referred to above (at [25]-[26]) point to the applicant's offence as being more towards the middle of the range of objective seriousness than the "lower end". The sentencing judge seems to have considered it as such as is indicated by his statement at the end of his sentencing remarks: "In some ways it was an act of terrorism on two vulnerable old people in their home". 29The applicant sought to demonstrate that the sentence was manifestly excessive by reference to Judicial Commission sentencing statistics and to a printout from the sentencing tables provided on the Public Defenders' website showing the outcomes in a multitude of cases involving the offence of aggravated break enter and steal. 30The statistics demonstrate that the sentence imposed in the present case is towards the upper end of the range of sentences that have been imposed for offences against s 112(2) but that does not compel a finding that it is manifestly excessive. It may be assumed that the circumstances of the many cases in the database vary widely and no attempt was made in the applicant's submissions to identify them. 31The printout of s 112(2) cases considered by this Court is similarly unhelpful in establishing manifest excess. There are almost 50 cases in the printout dating back to 1998. They include cases decided before standard non-parole periods were introduced in 2003 and cases decided during the currency of R v Way [2004] NSWCCA 131; 60 NSWLR 168 before it was overturned by Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The cases vary in the nature of the "serious indictable offence" and in the "circumstance of aggravation". No attempt was made in the written submissions to identify any purpose in providing the printout beyond saying that sentences which exceed that which was imposed upon the applicant had additional aggravating features. In oral address, counsel for the applicant referred to a selection of the cases but they each had factors which differed from the present case. 32Pertinently, the Crown referred to the following statement in the joint judgment in Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584 at 606 [59], endorsed by the majority in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 537 [55]: "[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were." 33The applicant's subjective case contained factors which pointed in different directions. He was a young man with a partner and three very young children. He had experienced the grief of losing twin daughters at their birth in 2011. But he had a significant substance abuse disorder and offended because of his apparent disinterest in dealing with that issue and his need to fund the acquisition of more drugs. On the other hand he had expressed to both the Probation and Parole Officer and Dr Furst some apparent insight and motivation to seek treatment. It was accepted by the sentencing judge that he was remorseful. His Honour was persuaded to reduce the length of the non-parole period in order to allow for an extended period of parole supervision. 34The sentence was clearly a stern one but not excessively so. The purposes of sentencing (s 3A Crimes (Sentencing Procedure) Act) to which the judge specifically referred - punishment and deterrence, both general and specific - were of significance. The applicant's history of similar offending detracted from his claim for leniency and although he was found to be remorseful, his rehabilitation prospects were, at best, guarded. 35We are not persuaded that the sentence is manifestly excessive. Orders 36We make the following order: Leave to appeal against sentence refused. ********** 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. Decision last updated: 21 August 2014