Buddle v Regina

Court of Criminal Appeal (NSW)|2006-08-03|Before: Spigelman CJ, Hoeben J, Rothman J

Background to offences 5 On 13 July 2001 the applicant was sentenced in the District Court for the offence of armed robbery. The sentence passed was a non-parole period of imprisonment for 3 years with a balance of term of 3 years. The sentence was to commence on 10 October 2000. The applicant was released to parole on 9 October 2003. He was returned to custody on 14 December 2003. All of these offences occurred between the date on which the applicant was released to parole and when he was returned to custody. On 17 December 2003 the applicant's parole was revoked and he was ordered to serve the balance of parole for the robbery offence of 2 years 10 months and 15 days commencing on 13 December 2003 and expiring on 27 October 2006. 6 On 16 September 2003 authority had been granted to the police to conduct an undercover operation by way of running a second hand dealer/pawn broking business at Port Kembla known as "Quick Bucks". The aim was to purchase stolen property and to identify offenders responsible for property offences along with drug and firearm supply. It was as a result of this operation that the applicant's part in the offences became known to police. 7 Count 1 - On 31 October 2003 the applicant and a co-offender went to a dwelling house "Benbullen" at Lot 1, The Old Road, Robertson and gained entry by removing a flyscreen and opening a closed but unlocked side window. A large quantity of property was stolen, including camera equipment, men's and ladies' watches, two video cassette recorders, two televisions, a DVD player, a compact disc player with tuner, a cassette deck, a sound processor, an amplifier and speakers and a quantity of compact discs. The total value of the property was estimated at $12,000. 8 Count 2 - Between 8.30am and 8.10pm on the same day, the applicant and a co-offender gained entry to a dwelling at "Woodville", Old Kangaloon Road, Robertson by forcing then opening and climbing through a rear window. A quantity of electrical equipment was stolen including a computer hard drive, a monitor, a printer, two television sets, two videocassette recorders and a quantity of ladies' jewellery. The total value of the property stolen was estimated at $1,600. 9 The stolen property from both offences was disposed of at "Quick Bucks". 10 Count 3 - On 5 November 2003 the applicant gained entry to a dwelling at 69 Bulli Pass Road, Bulli through an internal door after forcing open a garage door. A quantity of home entertainment equipment and jewellery was stolen including a DVD player, video cassette recorder, compact disc player, a Sony Play Station console with controllers and a game, a trolley suitcase, several DVD movies, a camera, eight Australian Bullion silver ingots, a gold chain and a pearl necklace. The total value of the property stolen was estimated at $3,000. Most of this property was disposed of at "Quick Bucks". 11 Count 4 - On 28 November 2003 the applicant gained entry to a dwelling at 10 Pheasant Ground Road, Robertson by forcing open a rear timber door. A large quantity of home entertainment equipment was stolen including televisions, compact disc players, videocassette recorders, mini stereo systems, a Play Station console with controllers and games, remote control units and DVD movies. The total value of property stolen was not available. This property was also disposed of at "Quick Bucks". 12 Count 5 - On 3 December 2003 the applicant gained entry to a detached garage at 765 Barkers Lodge Road, Picton by opening a closed, but possibly unlocked door. A quantity of power tools was stolen from the garage including a petrol driven generator, an angle grinder, three drills, a belt-sander and a water pump. Also stolen was an Aiwa brand stereo system and a stamp collection. The total value of property stolen was estimated at $2,809. This property was disposed of at "Quick Bucks". 13 Count 6 - On 5 December 2003 the applicant gained entry to a dwelling at 13 Sawan Street, Helensburgh by removing a flyscreen and jemmying open a front window using a screwdriver. A Panasonic brand videocassette recorder, a compact disc player, an Akai brand TV and remote controller, a suitcase and a quantity of ladies' jewellery were stolen. The value of the property stolen was estimated at $2,000. This property was disposed of at "Quick Bucks". 14 Count 7 - On 8 December 2003 the applicant gained entry to the garage of a dwelling at 42-44 Morrison Avenue, Wombarra by forcing the rear security screen door and unhooking the connecting chain. A large quantity of power tools was stolen from the garage including a whipper-snipper, chainsaw, four power drills, an electric sander, a jackhammer, two grinders, two electric saws, a nail gun, a high pressure water cleaner, a compressor and a welder. The total value of property stolen was estimated at $4,500. This property was also disposed of at "Quick Bucks". 15 The applicant was taken into custody on 14 December 2003.

Subjective matters and remarks on sentence 16 The applicant was born on 23 November 1967 and was 36 at the time of the offences. He is now 38. He has a poor criminal record. It starts with drug and dishonesty offences on 6 June 1985 and has continued at a steady rate until the date of these offences. His criminal record includes some 27 offences of break enter and steal, 3 of goods in custody, 7 of stealing, one of assault, 2 of false misrepresentation and in particular, 3 offences of armed robbery. He has received relatively lengthy periods of imprisonment in 1997 and in 2001. He was on parole when these offences were committed. 17 The applicant's parents separated when he was about 10. After living with his mother for about two years, he went to live with his father who was a chronic alcoholic. It was through the influence of his father that he commenced to abuse alcohol from about the age of 14. His father was of aboriginal background, but had been brought up in a non-aboriginal family and had held good jobs during the applicant's childhood. 18 The applicant had started truanting from school in year 7. Nevertheless, he did fairly well at school. His Honour favourably commented on the "enormous number of certificates and educational qualifications that he has obtained whilst in custody". The applicant left school at the age of 14½. Although he did obtain some work after leaving school, he has been unemployed and in trouble with the criminal justice system from a relatively early age. 19 It was the applicant's plan when he was released from gaol in October 2003 to start a kiosk at Bulli Beach with his mother. He had obtained some hospitality qualifications while in gaol. Conflict developed between the applicant and his mother in relation to the business. He complained that his mother was too pushy and controlling and in her evidence she agreed that this was so. The relationship between the applicant and his mother worsened when he took up with a girl who was a heroin addict who supplied the applicant with drugs. 20 Although the applicant had begun to drink alcohol from an early age, this had not been a major problem for him for approximately 10 years. His main drug of choice was heroin, which he had commenced to abuse at the age of 16 and which had developed into a habit by 18. The habit escalated during his 20's and he began to use other drugs such as amphetamines and cocaine in a cocktail. 21 This appears to have set the pattern of the applicant's life. He would remain relatively drug free while in prison and would remain drug free for a while after release. If he encountered problems, he tended to relapse into drug abuse. As a result of the problems with his mother and his involvement with a heroin-addicted girlfriend, he relapsed into drug use not long after his release on this occasion. These offences were committed against that background. 22 The applicant has three children, two of whom live with his mother. Both are now approaching adolescence and without a male influence have become rebellious and difficult for his mother to control. The applicant said that this has caused him a great deal of grief because he sees that he really ought be out of gaol and giving not only support to his children but also providing an example of a drug free life. He has as yet not been able to realise that ambition. 23 A psychological report, prepared in respect of the applicant, concluded with the following recommendation: "During his sentence he would be assisted by further counselling with the Cooma Gaol Psychologist with whom he has developed a good rapport. She has also involved his mother in the counselling process so each can understand the other's perspectives. Furthermore, a comprehensive planning process may be needed to assist Brett in adjusting back to life after gaol. Ideally, his needs would be served by a short three to six month period of rehabilitation in a residential program but this may be offset by his desire to take responsibility for his children as soon as possible. In any event, he will continue to require supportive supervision from the Probation and Parole Service, access to further drug and alcohol counselling in the community and general personal counselling to help him deal with various pressures and stresses in his life, particularly in his role as parent." 24 In relation to aggravating features his Honour referred to the applicant's criminal record, noted that some of the offences were committed in company, that the offences involved multiple victims and that the value of the property stolen was substantial. His Honour found little by way of mitigation in that the applicant's criminal record militated against leniency. There was a strong likelihood that he would re-offend and it could not be said that he had good prospects of rehabilitation. Nevertheless, his Honour accepted that the applicant had shown some remorse. 25 In relation to the objective criminality of the offences, his Honour noted that the offences were of a kind which caused the community a great deal of loss and inconvenience. His Honour also noted that these were prevalent offences. In passing the sentences which he did his Honour made them concurrent because of the repetitious nature of the offences and their number. In that regard his Honour said that he had regard to the principle of totality. His found special circumstances because of the need for the applicant to be closely supervised after his release.

Appeal 26 There is a preliminary difficulty which the applicant has to overcome. He was sentenced on 20 October 2004 and a Notice of Intention to Appeal was filed on 1 November 2004. It expired on 1 May 2005. Almost a year later on 28 April 2006 the applicant filed an Application for Extension of Time, together with an Application for Leave to Appeal and submissions. The Crown opposes the application for extension of time. 27 The applicant explained his failure to seek an extension of time on the basis that once he had filed his Notice of Intention to Appeal, he thought that a date would be allocated to the matter or that if anything more was required of him he would be advised by the Court. 28 Since this is the applicant's first application to this Court and because he is appearing for himself, I am inclined to grant his application for an extension of time. The Court has before it the appellant's written submissions, his oral submissions and full submissions in reply by the Crown. Accordingly, I propose to exercise my discretion in favour of the applicant and to extend the time within which his Notice of Application for Leave to Appeal and supporting submissions can be filed.

Ground 1: Error in sentencing re judge's comments in relation to a trial being prepared and resulting in no discount for early plea of guilty. 29 The applicant's submission was that although he had entered a plea of guilty, it was not apparent from his Honour's reasons that his Honour had granted any discount for that early plea. The applicant submitted that the context in which his Honour had referred to the plea suggested that no discount had been allowed. "He did plead guilty to the offences, although the pleas were made at a stage when the matter was being prepared for trial." (ROS 12/13) 30 It is clear from both the date when the plea of guilty was entered (30 August 2004) and from the way in which his Honour dealt with it that the plea was not entered at the earliest opportunity. The point which his Honour was making (correctly in my opinion) was that as a result, the applicant was not entitled the maximum discount for a plea of guilty but to something less than that. It is clear from the context that his Honour intended to allow a discount for the plea. It is unfortunate that his Honour did not indicate how much discount he was proposing to allow as this would have allayed the applicant's concerns but his Honour was not obliged to do so. 31 The relatively modest sentences passed by his Honour suggest that his Honour did allow a discount for the plea of guilty.

Ground 2: Failure to backdate sentence. 32 The applicant submitted that the delay between his return to custody and the sentencing proceedings of approximately 10 ½ months was not due to any fault on his part but was due to administrative delays within the court system. Implicit in the submission is the assumption that had the sentence proceedings come on for hearing at an earlier point in time, the sentences passed would have commenced as of that date so that the applicant would have obtained a greater degree of concurrency. 33 I do not agree with the assumption implicit in the submission. The degree of concurrency allowed by his Honour in favour of the applicant was already substantial and in that regard the sentences passed were extremely lenient. Because of the revocation of his parole, the applicant was obliged to remain in prison until 27 October 2006 in any event. The effect of his Honour commencing the sentences passed by him from 20 October 2004 in reality gave to the applicant a non-parole period of only 2 years. 34 Given the discrete criminality of each of the offences, the fact that seven different victims were involved and the time span over which they occurred, there was a strong argument available that some degree of accumulation should have been built into the sentences. This was necessary to provide an adequate penalty, from the point of view of general and particular deterrence, and to satisfy the principle of totality. By not doing so, considerable leniency was allowed by his Honour in the applicant's favour. 35 Had there been greater concurrency in the sentences passed by his Honour such as the applicant suggests, the level of leniency thereby involved would have been excessive in that the sentences would not have been within the range appropriate for the number of offences and level of criminality involved. It follows that the applicant has not been disadvantaged in the way he asserts.

Ground 3: Change in family circumstances in relation to children. The situation with children changed soon after the applicant was sentenced. 36 In oral submissions the applicant outlined to the Court particular difficulties which his mother was experiencing in raising his two sons. It was the applicant's submission that the problem with the boys could be best solved if he were at liberty so as to provide assistance in their upbringing. 37 Hardship to children when either the father or mother is imprisoned is almost inevitable. This was a matter specifically raised before his Honour in the sentencing proceedings. It was referred to in the psychiatric report tendered on behalf of the applicant and was also referred to by the applicant's mother in her evidence. His Honour specifically referred to the issue in his remarks on sentence. 38 His Honour clearly took this matter into account when formulating the sentence and no error has been identified in his Honour's approach. 39 This is a court of error. It can only intervene when error has been disclosed in the sentencing proceedings. A change in family circumstances which has occurred after the sentencing proceedings is not a matter which bespeaks error and does not provide a basis for the intervention of this Court.

Ground 4: Insufficient emphasis with regard to the discount for assistance to police due to false and misleading letter of comfort. 40 The applicant submitted that the letter of comfort received from the police in relation to assistance provided by him to them was misleading and that as a result he did not receive an appropriate discount from the sentencing judge for the assistance which he had provided to police after his arrest. 41 The applicant was legally represented in the sentence proceedings. The letter of comfort was tendered on behalf of the applicant in the applicant's case without qualification or comment (exhibit C). The letter of comfort stated that the applicant had provided information as to a house in which he had observed a large amount of heroin. The applicant described the house and provided a floor plan but could not provide the address. According to the letter the applicant had not subsequently provided the address. 42 Looked at realistically, the information provided by the applicant was of little value to the police. Although it accorded with police intelligence, a description and diagram of a house without its address was of little practical value. In my opinion this level of co-operation did not entitle the applicant to any discount and his Honour was correct not to place significant weight on this matter when passing sentence on the applicant.

Conclusion 43 Because of the level of concurrency and lack of accumulation the sentences passed by his Honour could only be regarded as lenient. No error has been demonstrated in his Honour's approach or in the resulting sentences. Even if error had been established, I am not satisfied that sentences less severe than those imposed by his Honour were warranted in law and should have been imposed. 44 I propose that leave to appeal be granted but that the appeal be dismissed. 45 ROTHMAN J: I agree with Hoeben J. **********

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CITATION: Buddle v Regina [2006] NSWCCA 236

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