Buddle v R

Court of Criminal Appeal (NSW)|2018-03-05|Before: Macfarlan JA, Johnson J, Campbell J, Barr JJ, MacFarlan JA

Judgment

MACFARLAN JA: Johnson J's reasons for judgment reflect my reasons for joining in the making on 5 March 2018 of an order refusing the applicant leave to appeal.
JOHNSON J: The Applicant, Brett Craig Buddle, sought leave to appeal with respect to an aggregate sentence passed in the Wollongong District Court on 12 August 2016 following his pleas of guilty to two counts of break, enter and steal contrary to s.112(1)(a) Crimes Act 1900.
The sentencing Judge imposed an aggregate sentence of imprisonment for three years and nine months commencing on 13 April 2016 and expiring on 12 January 2020, with a non-parole period of two years and eight months expiring on 12 December 2018. His Honour nominated an indicative sentence of three years' imprisonment for each offence. The maximum penalty for an offence under s.112(1)(a) Crimes Act 1900 is imprisonment for 14 years.
The hearing of the application for leave to appeal against sentence proceeded before the Court on 5 March 2018. The Applicant was unrepresented and made written and oral submissions in support of the application.
At the conclusion of the hearing, the Court made an order refusing leave to appeal against sentence with reasons to be provided at a later time. What follows constitutes my reasons for joining in the order of the Court made at the conclusion of the hearing.

Facts of Offences

The facts of the offences were not in dispute.
Between 4.00 pm on 21 February 2016 and 6.00 am on 23 February 2016, the Applicant broke into a house in Mount St Thomas by ripping off the external cladding of the home and smashing a hole in the gyprock lining of the premises before entering the premises. Nothing was taken from inside the house. The Applicant gained access to the rear shed on the property and took a number of power tools and other items to the value of about $1,600.00. Blood was located inside the premises near the entry point. DNA testing matched this blood to the Applicant.
On 5 April 2016, the Applicant went to a house in Corrimal and gained entry to an external toilet attached to a work/storage area. Once inside, he smashed a hole in the gyprock wall gaining access to the work/storage area. From that area, he stole a mountain bike, power tools, a custom remote-controlled car and other items to a total approximate value of $6,500.00. The Applicant's fingerprint was detected on a piece of gyprock found inside the premises.
The Applicant was subject to conditional liberty at the time of the commission of both offences, having been released on parole on 29 December 2015 following earlier offences of break, enter and steal.
On 13 April 2016, the Applicant was in custody on an unrelated charge (driving whilst disqualified) when he was charged with the present offences. He remained in custody from that date.

The Applicant's Subjective Circumstances

The Applicant was 48 years old at the time of the offences and also at the time of sentence.
The Applicant has a very long history (extending back to 1984) for offences of break, enter and steal and other property offences, as well as armed robbery offences committed in the late 1990s. As mentioned, the Applicant was on parole for offences of break, enter and steal at the time of the commission of the present offences. On 5 May 2016, the State Parole Authority revoked the Applicant's parole so that he was serving the balance of parole of one year, five months and 25 days from 13 April 2016.
The Applicant has twice before brought sentence appeals to this Court: R v Buddle (Court of Criminal Appeal, Grove and Barr JJ, 22 June 1998); Buddle v R [2006] NSWCCA 236.
Tendered at the sentencing hearing was a report of Dr Natasha Hyde from Justice Health dated 15 June 2016. The report addressed a number of health issues affecting the Applicant and the treatment of those conditions in custody. Also tendered was a psychological assessment of Ms Jen Harriman dated 21 July 2016 which contained a full psychological and social background report with respect to the Applicant.
The Applicant gave evidence at the sentencing hearing.

Remarks on Sentence

The sentencing hearing proceeded before his Honour Judge Haesler SC on 12 August 2016 and his Honour delivered ex tempore remarks on sentence at the conclusion of the hearing. His Honour's sentencing remarks are a model of clarity and fairness, expressed with commendable brevity.
Early in the remarks, his Honour observed that this was "not the first time [the Applicant] has come for sentence because he preys upon the property of others". His Honour referred to the need to impose an appropriate sentence which would have regard to, amongst other things, the protection of the community and the protection of property. His Honour observed (ROS1-2): "There are two ways that the community can be protected from Mr Buddle. The first is to lock him away for as long as possible and as long as is allowed by reference to the seriousness of the crime he committed. Preventative detention is not yet available to judges of this Court. The other way of protecting the community is to structure the sentence in such a way as it maximises Mr Buddle's chance of eventually leading a worthwhile life in the community and while that may be seen to be in his interests it is also in the community interest."
In what followed, his Honour applied the second approach in sentencing the Applicant. His Honour made favourable findings for the Applicant by allowing a 25% discount for his early pleas of guilty and by backdating the commencement of the sentence until the day he went into custody (13 April 2016) thereby providing the Applicant with the benefit of concurrence of this sentence with his balance of parole.
The sentencing Judge had regard to the reports of Ms Harriman and Dr Hyde and took into account the Applicant's health conditions and his family difficulties.
His Honour had regard to the Applicant's own troubled upbringing before stating (ROS5): "It is clear that you have become institutionalised. Every effort must be made to break that pattern. It is a reason for a finding of special circumstances even when it appears that you persist in committing offences on parole."
In concluding the remarks on sentence, his Honour said (ROS6): "When I come to determine the ultimate sentence I have to, by the severity of the sentence not only punish you but attempt to signal to others in the community that what you did or that crimes of a like nature will be severely punished. It is hoped that the severity of the sentence will get through to you personally. I will structure the sentence in a way that I hope will maximise your chance of rehabilitation but your prospects must be guarded. I also have to recognise the harm you did and by the severity of the sentence attempt to vindicate the dignity of the victims of your crimes."
His Honour proceeded to pass sentence in the manner referred to earlier in this judgment.

The Application for Leave to Appeal Against Sentence

Each of the offences involved breaking through gyprock in premises and the taking of property of significant value to the owners. It was a substantial aggravating factor that the offences were committed by the Applicant whilst he was on parole for similar offences. His long history of offences of break, enter and steal did not assist him on sentence.
His Honour made a finding of special circumstances so that the non-parole period constituted 71% of the aggregate head sentence. This approach was clearly open in the circumstances of the case and favoured the Applicant given the concurrent term for balance of parole.
No error has been demonstrated in the sentencing Judge's approach to the Applicant's pleas of guilty or the finding of special circumstances.
The aggregate sentence imposed upon the Applicant was a balanced and reasonable sentencing outcome in all the circumstances of the case. Far from being manifestly excessive, the aggregate sentence contained a significant element of leniency which favoured the Applicant.
The Applicant relied upon documentary material which was received at the hearing in this Court subject to relevance. The material recounted aspects of the Applicant's health and steps he was taking in custody both before and after he was sentenced in the District Court.
The material also referred to the health of his mother who regrettably has cancer. The material indicated that the Applicant's mother was receiving assistance from her daughter. There is no principled basis upon which the court can act on this material in the absence of a finding of error on sentence.
To the extent that the Applicant's initial grounds of appeal included criticism of his legal representation at first instance, it is appropriate to observe that the Applicant was represented capably before the District Court.
No arguable ground of appeal was advanced by the Applicant.
It was for these reasons that I joined in an order on 5 March 2018 that the Applicant be refused leave to appeal against sentence.
CAMPBELL J: The reasons expressed by Johnson J fully explain why I joined in the Court's order on 5 March 2018. I agree with Johnson J.

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: 14 March 2018

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