Allan v Regina

CATCHWORDS: CRIMINAL LAW - sentencing - where sentence imposed for an offence more serious than the charged offence - Crown concession of error - re-sentence

LEGISLATION CITED: Crimes Act 1900 s 112(1), s 112(2), s105A(1)(f), s 105A(2A) Criminal Appeal Act 1912 s 6(3)

Baxter v The Queen [2007] NSWCCA 237 Morrison v R [2009] NSWCCA 211 CASES CITED : R v Harris [2007] NSWCCA 130 R v McNaughton [2006] NSWCCA 242 R v Ponfield [1999] NSWCCA 435

PARTIES: Bernard Allan Regina

COUNSEL: Ms C Loukas and Ms M Pringle (Applicant) Ms V Lydiard (Repondent)

SOLICITORS: Ms S Hopkins (Aboriginal Legal Service) Mr S Kavanagh (Solicitor for Public Prosecutions)

• 8 - IN THE COURT OF CRIMINAL APPEAL 2007/11836

SIMPSON J HOEBEN J PRICE J

17 September 2010 Bernard ALLAN v Regina Judgment 1 SIMPSON J: I agree. 2 HOEBEN J: I agree. 3 PRICE J: The applicant Bernard Patrick Allan seeks leave to appeal against the sentence imposed upon him by McGuire ADCJ on 1 May 2009 in the District Court. Before venturing into the grounds of the appeal, it is useful to recount the unusual history of these proceedings in that court. 4 The applicant had on 1 April 2009 pleaded not guilty before a jury panel to a single count on an indictment which was in the following terms: "[He] on 5 April 2007 at Tamworth in the State of New South Wales did break and enter the dwelling house at 1 Coorong Street, and therein did steal a laptop computer and a ladies wallet and contents." 5 This was an offence contrary to s 112(1) Crimes Act 1900, which was noted on the indictment. 6 Section 112(1) Crimes Act provides for the offence of break, enter and commit a serious indictable offence. The maximum penalty for an offence contrary to s 112(1) is 14 years imprisonment. No standard non-parole period applies. 7 Section 112(2) Crimes Act provides for a more serious offence where a person commits an offence under s 112(1) in circumstances of aggravation. The "circumstances of aggravation" which are found in s 105A(1) Crimes Act, relevantly, include:

"… (f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed." 8 The maximum penalty for an offence contrary to s 112(2) Crimes Act is 20 years imprisonment. A standard non-parole period of 5 years has been prescribed for this offence. 9 After a jury of twelve was empanelled, the Crown, in his opening address said:

"Then we come to a more important or an essential element that goes to state of mind of the accused, that is knowing that there was a person or persons inside. Now, we have to prove that the accused knew that beyond a reasonable doubt. You'll probably hear from his Honour about that. Let me just tell you now there's some law in relation to assumptions." 10 It is evident that the Crown had in mind that the applicant was charged with an aggravated break and enter contrary to s 112(2) as the "essential element" to which he referred was the circumstance of aggravation of knowledge of the presence of a person or persons in the dwelling house: s 105A(1)(f) Crimes Act. Unfortunately no-one drew the Crown's attention to this misunderstanding during the three day trial. 11 The Crown's misunderstanding was continued in his closing address when he said:

"Then there is the aspect of knowing there was a person or persons inside, and in respect to that, I might have briefly mentioned in my opening that there is a presumption that someone who enters in these circumstances knows that there is someone inside, and you will hear more about that in the directions of law from his Honour, and I don't want to tell you about that." 12 It appears that the Judge also understood that the charge to which the applicant had pleaded not guilty was an offence of aggravated break and enter contrary to s 112(2). His Honour had asked during the trial in the absence of the jury (T 74 AB 164):

"Mr Crown, the indictment charges the accused, with knowing that there was a person or persons inside, did break and enter the dwelling house. What evidence is there of that? " 13 An exchange then followed between the Judge and the Crown concerning the statutory presumption of knowledge found in s 105A(2A) Crimes Act. 14 During his summing up, the Judge directed the jury that the Crown was required to establish that the applicant knew that there was a person or persons inside the premises and further directed them in terms of the statutory presumption. 15 The applicant had originally been indicted in the District Court with the more serious charge under s 112(2) Crimes Act and that indictment had remained on the court file. It seems that the Judge, because of the Crown opening, misapprehended that the trial was proceeding on the original indictment. Regrettably, nothing was said by the applicant's counsel to the Judge or to the Crown that the charge to which the applicant had pleaded was the less serious charge under s 112(1). 16 This appeal emphasises, notwithstanding the heavy caseload for those involved in the criminal trial work of the District Court, the need to pay careful attention to the terms of the indictment upon which an offender stands for trial. 17 The jury returned a verdict of guilty which the Judge understood was a finding of guilt to a charge of aggravated break and enter. In his remarks on sentence, the Judge said (ROS at 1): "The offender comes before me for sentence, he having been found guilty by a jury on a charge of break, enter and steal knowing that there were persons inside the premises. That crime attracts a maximum penalty of twenty years imprisonment. Attached to it [is] a standard non-parole of five years." 18 The Judge sentenced the applicant to imprisonment with a non-parole period of 2 years 6 months commencing 3 April 2009 and expiring on 2 October 2011. A parole period of 1 year 6 months was fixed. The total term of the sentence is 4 years. 19 The notice of appeal identifies two grounds: Ground 1: His Honour erred in having regard to a higher maximum penalty. Ground 2: His Honour erred in having regard to a standard non-parole period that did not apply. 20 The Crown properly concedes the two grounds of appeal as the applicant was sentenced for an offence more serious than the offence on the indictment. The Crown, however, submits the sentence is not manifestly excessive and no lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. The Crown cited R v Harris [2007] NSWCCA 130 in which this Court emphasised that heavy sentences should generally be imposed for break, enter and steal offences committed by repeat offenders on domestic premises, whether or not they were aggravated forms of the offence. The Crown also brought to our attention the helpful review by RA Hulme J of sentences imposed for single counts of break, enter and steal against s 112(1) Crimes Act in Morrison v R [2009] NSWCCA 211 at [53]-[62]. The Crown submitted that when consideration was given to all of the cases referred to in Morrison (many of which were pleas of guilty) it could not be said that the sentence was manifestly excessive. 21 The applicant submits on the other hand that a less severe sentence is warranted in law and statistical material from the Judicial Commission was provided. 22 Although error has been demonstrated, the question for this Court is whether some other sentence is warranted in law: Baxter v The Queen [2007] NSWCCA 237.

Facts 23 The facts of the offence, shortly stated, are that the applicant on 5 April 2007 entered the dwelling house by opening a closed door and stole a laptop computer and a wallet containing some forty-five dollars. The owner of the property, T, had left for work at about 6am locking the front and back doors. The householder heard the applicant in the house and telephoned T at about 6:10am. T called H, his employee, who he knew would be on his way to work and enquired whether he had seen anyone with a laptop. H called back, informing T that he had found the computer at a certain address. When T arrived the applicant was present. H told T "this bloke had your computer." The applicant denied that he had stolen it claiming that he had found it in a park. He had, shortly before, tried to sell the computer making a similar claim of finding it. 24 As the Judge was under the misapprehension that a standard non-parole period of 5 years applied, he characterised the offence as being less serious than a mid range offence and as being "at the lower end of the scale": ROS at 4. The Judge found that the offence was not planned, the applicant's entry into the house was brief, he neither sought to approach any of the occupants nor had he entered a bedroom nor caused destruction. There was no evidence, his Honour said, to demonstrate any ongoing effect upon the victims.

Subjective circumstances 25 In his sentencing remarks the Judge summarised the applicant's subjective circumstances as follows (ROS at 2): "The offender is aged thirty-six and is Aboriginal. He tells me that he was born in Moree, his father died when he was a baby and he grew up on a mission. Having moved to Sydney when nine or ten he was in and out of boys' homes and a street kid. He has had very little schooling, albeit that he can read and write. His mother had problems with alcohol. Having spent a couple of years at school after moving to Queensland he obtained labouring work and has worked as a roof tiler. However his last employment was in approximately 1996 or 1997. He told me of injuries which he had sustained in two motor vehicle accidents which involved head injuries, a leg fracture and facial scarring. It is his claim that he needs knee surgery or attention to his knees. At the age of about eighteen or nineteen he began to drink heavily, he resorted to heroin and amphetamines. He is subject to a condition of epilepsy and is on continuing medication. The father of five children he apparently has little if any connection with his two sons, however he has a boy aged eight and two girls whom he saw on a daily basis, until he was taken into custody. At one stage he attended a residential rehabilitation program and has expressed his desire to attend a further such program with a view to effecting complete rehabilitation. He has been on methadone for the last two years or thereabouts. Whilst in gaol he has done various courses including a welding course and claims to have various skills." 26 The Judge found special circumstances to facilitate the applicant's rehabilitation. 27 The applicant's criminal history discloses a lengthy prior record of offences of dishonesty including convictions for robbery in company, larceny, steal from the person and break, enter and steal. As an adult, he has had five prior convictions for break, enter and steal, the last conviction being at Penrith Local Court on 11 February 2005 when he was sentenced to imprisonment for 16 months with a 12 month non-parole period. The applicant's repeat offending not only disentitles him to leniency but gives rise to considerations of retribution, deterrence and protection of society: R v McNaughton [2006] NSWCCA 242. 28 The Judge remarked that the applicant's very extensive criminal history was a "matter of concern" and noted that on the applicant's account, he had spent some 14 of the last 18 or 19 years in custody. His Honour remarked that the crime of break, enter and steal was "seemingly endemic" and gave weight to the need for general deterrence. Intervention? 29 The Judge's assessment of the offence being at "the lower end of the scale" for the reasons identified at [24] above applies to the s 112(1) offence. None of the factors identified in the guideline judgment in R v Ponfield [1999] NSWCCA 435 as enhancing the seriousness of a s 112(1) offence are present in the offence committed by the applicant. 30 Notwithstanding the applicant's prior history of repeat offending, I have concluded that some other sentence is warranted in law.

31 I have taken into account the contents of the applicant's affidavit sworn 10 September 2010 upon re-sentence. It appears that he is making some progress in dealing with his drug addiction but remains on methadone. I propose that the total term of the sentence be reduced to 3 years 3 months. The finding of special circumstances by the Judge was well founded and is to be maintained in the proposed sentence. A non-parole period of 2 years adequately reflects the criminality involved in the offence. 32 Accordingly I propose the following orders:

1. Grant leave to appeal 2. Allow the appeal. 3. The sentence imposed in the District Court on 1 May 2009 be quashed. 4. The applicant is sentenced to imprisonment for a non-parole period of 2 years commencing on 3 April 2009 and expiring on 2 April 2011. I set a balance of term of 1 year 3 months which is to commence on 3 April 2011 and is to expire on 2 July 2012. 33 The earliest date of eligibility for the applicant's release to parole is 2 April 2011. 34 I confirm the Judge's recommendation that the applicant be required upon release to parole: "to subject himself to all directions of the officers of the Probation and Parole Service, to undertake [urinalysis] and to attend a full-time drug and alcohol rehabilitation course."

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