Book v R

Court of Criminal Appeal (NSW)|2018-03-21|Before: Bathurst CJ, Johnson J, Price J, Mr CJ

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Johnson J in draft. I agree with the orders proposed by his Honour and with his reasons.
JOHNSON J: The Applicant, John David Book, seeks leave to appeal with respect to a sentence imposed at the Bathurst District Court on 12 December 2016 for an offence of aggravated (in company) break, enter and commit serious indictable offence (stealing) contrary to s.112(2) Crimes Act 1900.
Following a plea of guilty, the Applicant was sentenced by his Honour Judge Blackmore SC to a term of imprisonment of two years and eight months commencing on 7 November 2016 and expiring on 6 July 2019, with a non-parole period of one year and eight months expiring on 6 July 2018. The maximum penalty for this offence is 20 years' imprisonment with a standard-non parole period of five years.

Facts of Offence

An Agreed Statement of Facts was tendered at the sentencing hearing which revealed the following.
At about 9.22 pm on Monday, 30 May 2016, the Applicant, a co-offender, Aaron John Dominey ("Dominey"), and an unknown third offender ("the third offender") approached the Masters Home Improvement Retail Store ("the Masters Store") at Kelso. The southern side of the Masters Store was next to a railway line which passed under a bridge located on Littlebourne Street, Kelso. This street is about 100 metres from the rear fence of the Masters Store.
The Applicant, Dominey and the third offender entered the grass embankment next to the railway corridor through a chained fence and walked to the outer perimeter fence of the Masters Store. Dominey cut through the external wire fencing gaining entry to the loading dock of the Masters Store. The Applicant and Dominey then walked towards the entry roller door of the loading dock. The third offender arrived shortly after and all three persons looked around the loading dock area. A second wire fence separated the loading dock and the drive-through indoor trading area within the Masters Store.
Details of the offence were captured on closed circuit television footage which permitted identification of the Applicant and Dominey because of their clothing. Dominey was wearing a black jacket with a hood and blue-coloured pants together with a light brown cap with a Nike emblem on the front. The Applicant was wearing a distinctive light-blue coloured hooded jacket with an easily recognisable check pattern on it and black track pants with "Everlast" written in white down the leg. The third offender was seen to be wearing a dark-coloured jacket with stripes and black pants.
At 9.25 pm, Dominey used wire cutters to cut a large hole in the fence allowing the three offenders to access the drive-through trade area. Dominey entered into this area through the fence whilst the Applicant kept lookout.
At 9.27 pm, the Applicant entered through the wire fence into the drive-through trade area and looked around at items on the shelf. The Applicant stood in the loading dock whilst Dominey and the third offender handed stolen items to him.
The Applicant then walked away from the loading dock to the first entry point in the fence near the railway line where he placed the stolen items outside the fence.
At 9.37 pm, the Applicant returned to the loading dock where he again received stolen items and carried them away and placed them near the outer perimeter fence.
At 9.39 pm, the third offender walked away from the loading dock towards the outer perimeter fence whilst holding stolen items and placed them outside the fence near the railway line.
At 9.42 pm, the third offender came back from that location empty handed. At this point, the Applicant returned and again walked away towards the outer perimeter fence carrying stolen items.
At 9.43 pm, the third offender walked away from the loading dock and carrying more stolen items.
At 9.44 pm, Dominey left the drive-through trade area and walked towards the outer perimeter fence.
By this time, the Applicant, Dominey and the third offender had stolen one Ox wooden mitre box valued at $29.98, three Ox concrete screeds valued at $83.00 each and three Ox aluminium bull floats valued at $121.00 each, bringing the total of the stolen property to $641.98.
At 10.22 pm, the three offenders returned to the loading dock where Dominey placed white gloves on his hands before he and the third offender entered through the fence into the drive-through trade area where they passed four Cobalt comfort grip sander poles valued at $20.58 to the Applicant, who walked away from the loading dock towards the outer perimeter.
The Applicant returned to the loading dock at about 10.26 pm and then, at 10.31 pm, the three men ran from the Masters Store and the loading dock after being "spooked" by a vehicle in the carpark. They left all of the stolen items in the grassed area near the railway line.
At 4.35 am on 31 May 2016, the Applicant, Dominey and the third offender returned to the Masters Store and collected the stolen items from the location where they had been left. The total value of the goods stolen was about $700.00.
The Applicant, Dominey and the third offender were seen carrying the items away from the Masters Store. The third offender left the Applicant and Dominey before they dropped the stolen items at the corner of Kable Place and Bannerman Crescent, Kelso.
At 4.50 am on 31 May 2016, the Applicant and Dominey were stopped by patrolling police in Bannerman Crescent, Kelso. They were both puffing and sweating and appeared to have been running. This attracted police attention as, at that time of night, the temperature was less than zero degrees. The location where the two men were stopped by police was about 100 metres from the dumped property. The stolen items were recovered and were frosty and cold as they had been left exposed in the grassed area behind the Masters Store for some six hours.
All property was returned to the Masters Store. There was approximately $2,000.00 in damage to the internal and external fences as a result of the offence.
The Applicant and Dominey were arrested by police on 2 June 2016 and both were interviewed by police. The Applicant denied involvement in the offence and said that, when he was stopped by police at about 4.50 am on 31 May 2016, he did not know the two males that were with him at that time.
The Applicant was charged with this offence on 2 June 2016 and was released on bail. Bail was refused on 2 August 2016 following a breach of bail and the Applicant remained in custody until 5 September 2016 when he was again granted conditional bail and was released.
The Applicant was taken into custody on 12 December 2016 when sentence was passed in the District Court.

The Applicant's Subjective Circumstances

The Applicant was born in August 1988. He was 26 years old at the time of the offence and 27 years old at the time of sentence.
On 4 March 2009, the Applicant appeared at the Cowra Local Court on a range of driving offences for which he was fined and disqualified for three years.
On 3 June 2009, the Applicant appeared at the Cowra Local Court on a charge of larceny for which he was fined $400.00.
On 9 February 2011, the Applicant appeared at the Cowra Local Court on a charge of cultivating a prohibited plant for which he was fined $300.00.
On 19 August 2011, the Applicant was sentenced at the Wagga Wagga District Court for an offence of aggravated (in company) break and enter and commit a serious indictable offence (stealing) for which a suspended sentence of two years' imprisonment was imposed upon the Applicant entering into a good behaviour bond to accept the supervision of the Probation and Parole Service, to abstain from the use of illicit drugs, to attend drug and alcohol counselling and to attend psychotherapy and undertake other steps as part of his supervision. That offence had been committed in June 2010.
A presentence report dated 14 October 2016 was placed before the District Court. According to this report, the Applicant attended school in Queensland and relocated to New South Wales after he was expelled for truancy and drug possession. After leaving school, he had worked for a period as a brick cleaner. The Applicant is father to three children who had been taken into care by the Department of Community Services in August 2016.
The Applicant has a history of illicit substance abuse including intravenous use of methamphetamine ("Ice") at about the time he committed the present offence. The author of the presentence report noted that the Applicant had presented with chronic mental health issues which had reduced his capacity to lead a prosocial life.
A report of Mr Daniel Jarvis, psychologist, dated 8 December 2016 was tendered in the defence case on sentence. Mr Jarvis assessed the Applicant as having low-average intelligence and a poor educational background with a significant substance abuse issue sufficient to support a diagnosis of stimulant use disorder.
The Applicant did not give evidence at the sentencing hearing.

Some Findings of the Sentencing Judge

The sentencing hearing proceeded at the Bathurst District Court on 12 December 2016 with his Honour proceeding to sentence the Applicant in ex tempore sentencing remarks later that day.
After reciting the facts of the offence, his Honour stated that the offence of break, enter and steal is "plainly serious as can be gauged by the maximum penalty attaching to its commission and the standard non-parole period" that applied to it. His Honour had regard to the decision of this Court in R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 with respect to sentencing for offences under s.112 Crimes Act 1900 (ROS4-5).
The sentencing Judge adverted to the Applicant's criminal history and the circumstances of the present offence (ROS5-6): "I note that the offender in this case has a criminal record for the commission of this very same offence. The offence appears to have been subject to some planning, was not a spontaneous offence, but one committed using tools to break into a large business. Of course when assessing the objective seriousness of the offence, an assessment of the offence said to amount to a serious indictable offence must be undertaken. In this case the offence is one of stealing which while serious, is towards the bottom of the range of seriousness in terms of serious indictable offences. For example other serious indictable offences carry penalties up to and including life imprisonment, whereas stealing carries a penalty of five years imprisonment. In terms of assessing the objective seriousness of the offence, I would place it well below the middle of the range of seriousness for such offences. The offender is not entitled to any particular leniency as a result of his earlier commission of a similar offence for which he received a suspended sentence. That fact requires attention being paid to both general deterrence on sentence, but also in this case specific deterrence to deter this offender from further offending. I note that the offender's criminal record is less serious than that of his co-offender Dominey."
The sentencing Judge referred to the Applicant's subjective circumstances and the report of Mr Jarvis and the presentence report (ROS6-7).
His Honour referred to the issue of the Applicant's mental health (ROS7): "I note the submission made on behalf of the offender. Firstly, he is said to be suffering from mental health conditions, which include depression. It is submitted that as a result the principle of general deterrence should play little role in the sentence. In my view the offender's mental health problems which I accept exist did not materially affect his decision to become involved in this offence. He became involved in this offending because he needed to feed his drug habit, in the context of him having little income and having expenses for his family including rent. Of course the fact that he has a mental condition can be taken into account on sentence. Because a person who suffers such a condition will find any period of fulltime custody more difficult. I do take that consideration into account on sentence."
With respect to an application made on behalf of the Applicant that the proceedings be adjourned for 12 months under s.11 Crimes (Sentencing Procedure) Act 1999 to allow the Applicant to undertake a rehabilitation program, his Honour declined to make such an order noting that, in light of the presentence report, the Court "would have little faith if the offender was released on such a remand today that he would make any effort to undertake rehabilitation in such a period" (ROS7).
The sentencing Judge accepted that the Applicant suffered from attention deficit disorder which could make persons more susceptible to the use of drugs. His Honour stated that, until the Applicant was able to address his substance abuse issues, his prospects of rehabilitation must be guarded. To the extent that the Applicant had told the probation officer that he wished to get his life back on track, the sentencing Judge accepted that the Applicant had expressed contrition (ROS8).
The Applicant was allowed a discount of 25% for his plea of guilty entered at the first reasonable opportunity (ROS8).
The sentencing Judge noted that Dominey was older and had a more serious criminal history than the Applicant and that Dominey had received for this offence a sentence of imprisonment for three years with a non-parole period of two years. In comparing the position of the Applicant and Dominey, his Honour said (ROS8): "Their roles in the offence do not require any differentiation on sentence, if there is to be a lesser sentence passed in respect of this particular offender, it is because of his mental health condition, being more severe than that of Dominey and also his lesser prior criminal record."
The sentencing Judge noted that he had taken into account relevant factors under s.21A Crimes (Sentencing Procedure) Act 1999 and, without double counting, factors arising from R v Ponfield.
His Honour proceeded to sentence the Applicant and recommended that the Applicant undertake the EQUIPS addiction and aggression courses whilst in custody with a further recommendation that the Applicant undertake long-term drug rehabilitation whilst subject to parole.

The Claim of Manifest Excess Submissions of the Parties

Mr Bruce SC, for the Applicant, submitted that the starting point of the Applicant's sentence prior to the 25% discount for his plea of guilty was approximately three years and seven months' imprisonment. In light of the sentencing Judge's finding that the objective seriousness of the offence was well below the middle of the range of seriousness for such offences, it was submitted that the sentence imposed was unreasonable or plainly unjust. Whilst acknowledging that the Applicant had a prior offence of the same type, it was submitted that this had occurred some six years before this offence and that this was to be the Applicant's first time in custody.
The Applicant relied, as well, upon the fact that the serious indictable offence in this case was stealing, for which the maximum penalty was imprisonment for five years, so that it was at the minimum threshold of serious indictable offences. Reliance was placed, as well, upon the fact that the circumstance of aggravation in this case was that the Applicant was in the company of other persons. It was argued that this was the least serious of the aggravating features set out in s.105A Crimes Act 1900.
The Crown submitted that the sentence in this case was reasonably open to the sentencing Court. It was submitted that the sentencing Judge had proper regard to the statutory guideposts in the form of the maximum penalty and the standard non-parole period.
With respect to the sentencing Judge's finding that the offence was well below the middle of the range of seriousness, the Crown noted that the finding did not place the offence at the bottom of the range or even towards the bottom of the range. This was understandable, the Crown said, given that there was a degree of planning with the use of wire cutters to break into large commercial premises.
The Crown submitted that the sentencing Judge properly found that general and specific deterrence were important considerations in sentencing the Applicant in particular given his prior offence of a similar type committed in 2010. It was submitted that the presentence report referred to the Applicant's poor response to supervision in the past for reasons associated with his substance abuse. The Crown submitted that the finding that the Applicant's prospects of rehabilitation were guarded was clearly open in this case.
The Crown submitted that the parity principle was also an important consideration in this case with his Honour noting features relevant to the co-offender Dominey and the sentence which had been imposed upon him.
The Crown noted, as well, that a finding of special circumstances was made as a consequence of the Applicant's need for rehabilitation with the non-parole period constituting 62.5% of the total term. Decision
To succeed on this ground, the Applicant must establish that the sentence was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 371 [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at 538-539 [59].
Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing Judges are required to reach a sentence for an offence by balancing many different and conflicting features: Markarian v The Queen at 371 [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at 72 [34].
Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221 at 185-186 [443]. As Hayne J observed in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at 159 [128] "there will be a range of possible sentences that could be imposed without error".
The sentencing Judge had regard to the fact that the serious indictable offence in this case was stealing and that the circumstance of aggravation was that the Applicant was in the company of other persons.
In R v Huynh [2005] NSWCCA 220, Simpson J (Barr and Latham JJ agreeing) said, at [27], with respect to the relevance of stealing being the serious indictable offence in a s.112(2) offence: "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."
In R v Huynh, at [29], Simpson J said with respect to the circumstances of aggravation defined in s.105A: "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."
In Marshall v R [2007] NSWCCA 24, Howie J (McClellan CJ at CL and Simpson J agreeing) said (at [34]-[40]) that for s.112(2) offences where the serious indictable offence is stealing, the guideline judgment in R v Ponfield assists in evaluating the seriousness of the offence. Accordingly, the type of premises entered, the nature and value of the property taken and whether there is substantial damage to, or ransacking of, the contents of the premises are relevant considerations. The Court must also consider the element of aggravation relied upon both as to its nature and what was actually done that gave rise to the aggravating factor.
The relevance of an offence being committed "in company" was considered in White v R [2016] NSWCCA 190 especially at [2]-[4], [77]-[98]. The circumstance of aggravation in s.105A(1)(b) that an offender is in the company of another person or persons with respect to a s.112(2) offence, reflects the fact that more than one person is involved in the break, enter and steal offence. There will be several pairs of hands at work in the commission of the offence, with these persons having a common purpose in this respect. It is the combined involvement of a number of persons sharing a common purpose which aggravates the offence.
The present case is a good example of s.112(2) offenders acting in company and performing different tasks in the course of the offence which occurred over a period of time, including the taking and carrying away of stolen items and acting as a lookout. In this case, there were three offenders in circumstances where two offenders only would have constituted the aggravating circumstance of being "in company" under s.105A(1)(b).
The sentencing Judge had regard to the features of this case including the use of tools to enter commercial premises with a number of items being stolen and with damage being sustained to the property itself.
The Applicant's prior offence of a similar type did not assist him on sentence for this matter with this being reflected in the sentencing remarks and the sentence itself.
The Applicant's subjective circumstances were taken into account in an appropriate way by the sentencing Judge. Recommendations were made concerning rehabilitative steps to be taken with respect to the Applicant in custody and when released on parole. The length of the sentence imposed was such that the Applicant will be released on parole on 6 July 2018 by order of the sentencing Judge.
The maximum penalty and standard non-parole period were important statutory guideposts on sentence in this case. In light of the objective circumstances of the offence itself and the Applicant's subjective circumstances, together with other sentencing principles to be applied in this case, the sentence imposed was well within the range of sentence appropriate to the case.
The Applicant has not established that the sentence was manifestly excessive.
I propose the following orders: 1. leave to appeal against sentence granted; 2. appeal dismissed.
PRICE J: I agree with Johnson J.

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