Connor v R

Court of Criminal Appeal (NSW)|2005-12-08|Before: McClellan CJ, Studdert J, James J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; Studdert J at 2; James J at 49

DECISION: 1. Leave to appeal granted. 2. Appeal allowed. 3. The sentences imposed in respect of counts 2, 3, 4 and 5 confirmed. 4. The sentence imposed in respect of count 6 quashed. 5. In lieu thereof, the applicant is sentenced to a non parole period of three years commencing on 20 November 2003 and to expire on 19 November 2006, and a balance of term of one year commencing on 20 November 2006 and to expire on 19 November 2007, and the applicant is eligible for release on parole on 19 November 2006. 6. The direction made in the case of the applicant pursuant to s77B of the Victims' Support and Rehabilitation Act 1996 be varied by adding the words: "The liability under this direction is to be reduced by the amount of any payment made by Stephen Martin Andrews pursuant to the direction made against him on 20 May 2004 to the extent that such payment covers the same loss for which provision is made under this direction."

Crimes Act, s 112 Criminal Appeal Act, s 9 LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act, s 5 Victims' Support and Rehabilitation Act, ss 77B, 77D, 77F, 77G

Re Attorney General's Application (No. 1) under s26 of the Criminal Procedure Act; R v Ponfield & Ors (1999) 48 NSWLR 327 R v Andrews [2005] NSWCCA 199 CASES CITED: R v Roby [2003] NSWCCA 242 R v Van Hoang (2002) 135 A Crim R 244

A. Francis (Applicant) COUNSEL: J. Dwyer (Crown)

S. O'Connor (Applicant) SOLICITORS: S. Kavanagh (Crown)

IN THE COURT OF CRIMINAL APPEAL 2005/1329

McCLELLAN CJ at CL STUDDERT J JAMES J

Wednesday 14 December 2005 ALLAN BRIAN CONNOR v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Studdert J. 2 STUDDERT J: The applicant, Allan Brian Connor, seeks leave to appeal against sentences imposed by his Honour Judge Nield in the District Court at Grafton on 20 May 2004. The sentences were imposed in respect of five offences of aggravated break enter and steal (being in company). Each of those offences was in a category for which s 112(2) of the Crimes Act provides for a maximum penalty of twenty years imprisonment. 3 The indictment presented contained six counts, but the first of these concerned only a co-offender, Stephen Martin Andrews. The offences for which the applicant was sentenced were those the subject of counts 2-6, and the applicant was sentenced as follows:

Counts 2 and 3: Imprisonment for a fixed term of two years to commence on 20 November 2003 and to expire on 19 November 2005;

Count 4: Imprisonment for a fixed term of two years to commence on 20 May 2004 and to expire on 19 May 2006;

Count 5: Imprisonment for a fixed term of two years to commence on 20 November 2004 and to expire on 19 November 2006;

Count 6: Imprisonment for a total period of four years with a non parole period of two years ten months to commence on 20 July 2004 and to expire on 19 May 2007, and a parole period of one year two months to commence on 20 May 2007 and to expire on 19 July 2008. 4 The aggregate total term imposed was four years eight months with a non parole period of three years six months. 5 The relevant facts may be shortly summarised. The applicant and the co-offender, Stephen Martin Andrews, broke into the Nambucca Heads Golf Club and the Coffs Harbour Golf Club on 20 November 2003. A third offender, Darren Parmenter, joined them to break into the Cloncurry Sports Club,the Taree Golf Club on 18 November 2003 and the Smithtown Bowling Club on 19 November 2003. At each of the named club premises, having broken into the club, the offenders stole money from the poker machines. 6 In relation to the offences committed by the applicant, the total amount of money stolen was $3454 and the damage to property occasioned totalled $1960. 7 The sentencing judge remarked (ROS 3): "There was nothing special or extraordinary or difficulty about the offenders committing the offences. The offenders went to the clubs' premises late at night when the premises were unoccupied, and likely to be unoccupied, and they broke into the premises and, when one of them was inside the premises, he broke open poker machines, removing notes and coins from the drawers of the machines, and then he left the premises, and they left, leaving in the motor vehicle of Mr Andrews. It was a planned series of offences but the planning was easy and minimal without much sophistication, but successful." 8 The judge considered the application of the guideline judgment in Re Attorney General's Application (No. 1) under s 26 of the Criminal Procedure Act; R v Ponfield & Ors (1999) 48 NSWLR 327 and noted the following (ROS 8-9): "So far as the guideline judgment is concerned, the relevant features are these: 1. There were multiple similar offences. 2. The offences were planned, albeit minimal planning and without much sophistication, but planned nonetheless. 3. The offences are committed by offenders with lengthy records for such offences. 4. The offences were committed at night, when the premises were unoccupied and likely to be unoccupied. 5. No one was threatened or injured during the commission of the offences. 6. Although damage was done to the premises in their being entered, and to the poker machines within them, the damage was relatively minor and the premises were not ransacked or vandalised. 7. Although money was stolen from the premises, the amounts stolen were not great and some of it has been recovered. Having regard to these features, I consider that the offences committed by the offenders fall towards the bottom, if not lie at the bottom, of the range of objective seriousness for such offences." 9 The judge found that the applicant pleaded guilty at the earliest appropriate opportunity and determined that the applicant was entitled to a twenty-five percent discount because of his guilty pleas. His Honour did not find special circumstances. 10 The judge found that the crimes were committed because the applicant and the other offenders had exhausted their funds whilst driving from Adelaide towards Queensland. 11 The grounds of appeal relate to the sentences imposed and also to the compensation order which the judge made. The judge ordered the applicant to pay "the sum of $5414 as compensation, less the amount of $842 recovered from you at the time of arrest, leaving the sum of $3572."

(There is a mathematical or typographical error in the expression of that order, and that should read $4572.) 12 I shall deal firstly with the grounds directed at the sentences imposed.

Ground 1: The sentencing judge erred in failing to give proper weight to the applicant's subjective case 13 The applicant was sentenced at the same time as the co-offender Andrews, and his Honour expressed joint remarks on sentence. His Honour reviewed the subjective features of both the applicant and his co-offender before expressing this conclusion (ROS 12): "Parity. As between Mr Andrews and Mr Connor there are two things that are different. One is their ages and the other is that Mr Andrews stands for sentence for six offences and Mr Connor stands for sentence for five offences. Other than that, there is nothing between them." 14 His Honour made the following remarks in a context referable both to Andrews and to the applicant (ROS 5): "There comes a time in everyone's life when what has gone before cannot be blamed for what happens now. I consider that this time has long since come and passed in the lives of the offenders. Neither of them can blame what happened in their past for their commission of the subject offences." 15 Because he had been sentenced for six offences, Andrews received a longer effective term of imprisonment than the applicant. In Andrews' case, the effective head sentence was five years four months with a non parole period of four years, so Andrews received an effective total sentence that was eight months longer than the applicant and the non parole period was six months longer than the applicant. 16 Andrews sought leave to appeal against his sentences and was successful in doing so: R v Andrews [2005] NSWCCA 199. 17 Buddin J, with whom the other members of the court agreed, considered that in the passage of the sentencing remarks last cited above, the judge was indicating that the applicant's early personal history was entirely irrelevant. It was held in Andrews that such an approach was erroneous. The court in Andrews referred to an earlier decision in R v Roby [2003] NSWCCA 242. 18 In Roby the sentencing judge had said of the offenders' subjective circumstances that they "can no longer be of any relevance so far as these [ie present] offences are concerned". Spigelman CJ, with whom Hidden J agreed, observed at [26]-[27]: "26 I am, however, concerned with his Honour's flat rejection of the continued 'relevance' in any way of the Applicant's personal circumstances, on which the sentencing judge and this Court relied, in the sentencing task on the previous occasion. I can accept that such a personal background is entitled to less weight in the sentencing task and that the requirements of general and personal deterrence are entitled to more weight, on a subsequent occasion, but that is not, however, what his Honour appears to have done. He asserted that the personal subjective circumstances of a tragic early personal history were completely irrelevant. Whilst I agree they are entitled to less weight, I do not agree that they should be regarded as entirely spent, as his Honour appears to have done. 27 I would not myself, but for this error, have regarded the sentences actually imposed as manifestly excessive, but I do believe by determining that the Applicant's personal history was no longer of any relevance in the sentencing exercise before the Court, there was a legal error entitling this Court to intervene." 19 Having cited the above passage from Roby, Buddin J said in Andrews (at [17]): "17 I accept the applicant's submission that the sentencing judge in the present case has fallen into error of precisely the same kind. His Honour appears to have treated the applicant's early personal history as being entirely irrelevant rather than of reduced weight. I would uphold this Ground of Appeal." 20 Consistently with the decision in Andrews, it seems to me that this Court should now find Ground 1 to have been established. 21 The sentencing judge did have before him a report from Dr David Roland, clinical psychologist, which traced the applicant's history, including his early history. The applicant had an unhappy childhood. His father was frequently intoxicated and assaulted his mother. His father also "flogged" the applicant and his brothers. The applicant's education appears to have reflected the family instability. The applicant attended numerous schools because the family moved around quite a lot. The applicant started to abuse alcohol at the age of fifteen or sixteen, and he has continued to do so since. In 1989 the applicant was sexually assaulted whilst in prison, and in consequence developed what Dr Roland opined was Post Traumatic Stress Disorder, for which the applicant has been on medication. 22 Whilst the judge was entitled to regard the applicant's early personal history as having reduced weight by reason of the effluxion of time and the opportunity that presented to overcome his disadvantaged background, the judge ought not to have regarded that early history as entirely irrelevant.

Ground 2: The principles of due proportionality give rise to a justifiable grievance on the applicant's part having regard to the resentencing of Mr Andrews 23 Having found error established in Andrews' case, the Court of Criminal Appeal intervened and the effect of the intervention was to reduce the effective head sentences by eight months and the non parole period by six months. In the result, Andrews is now to serve effectively the same sentence as the applicant even though he participated in an extra offence under s 112(2) of the Crimes Act, namely the offence committed at the Bulahdelah Golf Club. 24 Since the sentencing judge found there was nothing to distinguish the applicant from Andrews other than their ages and the number of offences committed, it is submitted that the applicant would have a justifiable sense of grievance if his sentences are not reduced. 25 The Crown has submitted that apart from the two matters of distinction between the two offenders identified by the sentencing judge (para 12 above), there is a further significant distinguishing feature. When the applicant committed the subject offences, he was, as the sentencing judge observed, on conditional liberty. On 25 January 2001 he was sentenced in the District Court in Queensland for a number of offences to a term of imprisonment for five years, but the sentence was suspended for five years after the applicant served one year six months. The circumstance that the applicant was re-offending whilst on conditional liberty was not present in Andrews' case. 26 Whilst that is true, it has to be borne in mind that both these offenders had very bad criminal records. Andrews had a criminal record in New South Wales and Queensland. The sentencing judge summarised it in this way, namely that Andrews had been dealt with in New South Wales for twenty offences and twelve of these were offences of breaking entering and stealing. A further four of them were offences of breaking and entering with intent to steal. In Queensland Andrews has been dealt with for 115 offences, of which sixty-six offences were breaking entering and stealing offences and sixteen were breaking and entering with intent to steal. There were four offences of attempting to break and enter with intent to steal and six of stealing. 27 This applicant has no criminal record in New South Wales but he has a criminal record in Western Australia, in South Australia and in Queensland. In Western Australia he has been dealt with for six offences, two of which were burglary and another of which was breaking entering and stealing. In South Australia he has been dealt with for eleven offences, one of which was serious criminal trespass upon non-residential property. In Queensland he has been dealt with for 113 offences, of which three were breaking entering and stealing, eighteen were breaking and entering with intent to steal, one was attempting to break and enter with intent to steal, one was entering a dwelling without lawful excuse, two were of robbery, fifty-five were of stealing and one was of attempted stealing. 28 It seems to me, having regard to those records of the applicant and of Andrews, that considerations of personal deterrence and of deterrence assumed equal importance in both cases. 29 The Crown has referred to the health of the offender Andrews as being a further distinguishing feature. It was not so regarded by the sentencing judge and his finding that the health problems of Andrews were under control and would be able to be kept under control in prison is a reasonable finding on the evidence. 30 The subjective features in the cases of the applicant and of Andrews are, of course, not identical and the circumstances of the childhood upbringing of Andrews appear to have been somewhat harsher even than those of the applicant. Nonetheless, it seems to me for present purposes the finding that the sentencing judge made that that which distinguishes the two offenders for sentencing purposes was the number of offences committed was an appropriate finding. 31 I conclude therefore that Ground 2 has been established and that the Court should intervene. I would do so by quashing only the sentence imposed on the sixth count. In lieu thereof, I would set for that offence a non parole period of three years commencing on 20 November 2003 and expiring on 19 November 2006 and a balance of term of one year commencing on 20 November 2006 and to expire on 19 November 2007. Hence, I would propose that the applicant would become eligible for release upon parole on 19 November 2006. This would have the practical effect of reducing the non parole period by six months and the overall sentence by eight months. 32 This brings me to the grounds concerning the compensation order.

Ground 3A: The compensation order is oppressive when proper regard is had to the applicant's custodial circumstances and ought to be annulled pursuant to s 9(2) Criminal Appeal Act

Ground 3B: Alternatively, the compensation order is excessive. It ought to be varied to pursuant to s 9 Criminal Appeal Act 33 On the agreed facts presented, the total amount claimed for compensation by the affected golf clubs referable to the money stolen and the damage to property was $7114. Of that amount, $1700 was referable to the claim by the Bulahdelah Golf Club, and the applicant was not involved in what occurred at the premises of that club. Hence, the total loss and damage concerning the clubs that were broken into by the applicant and Andrews together was $5414. 34 When sentencing the applicant and Andrews, the judge made these orders: In the case of Andrews : "I order that you pay to the Accounts Section, District Court, Criminal Registry, Level 3, Downing Centre, 143-147 Liverpool Street, Sydney, within 28 days of today, the sum of $7114 as compensation, less the amount of $1016, recovered from you at the time of your arrest, leaving the sum of $6098. I order that the Crown disburse the amount of $1016 amongst the victims of the offences in equal proportions." The applicant: "As to compensation. I order that you pay to the Accounts Section, District Court, Criminal Registry, Level 3 Downing Centre, 143-147 Liverpool Street, Sydney, within 28 days of today, the sum of $5414 as compensation, less the amount of $842 recovered from you at the time of your arrest, leaving the sum of $3572. I order that the Crown disburse the amount of $842 amongst the victims of the offences in equal proportions." 35 In Mr Andrews' case, the sum of $1016 mentioned consisted of $800 that was found in his wallet when he was arrested and $476 which was found in a toiletries bag in his car. $428 was found in the applicant's wallet and $414 in his bag. This accounts for the $842 referred to in the order that concerns him. 36 It is submitted on the applicant's behalf that the compensation order is oppressive because he does not have the means to satisfy the order and he has no reasonable prospects following his release from custody of paying the money. In the alternative, it is submitted that if an order is to be made it should be an order that the applicant be required to pay only fifty percent of the total claim concerning the money stolen and the damage done in the commission of the crimes in which he was involved. The Court is asked to exercise its power under s 9 of the Criminal Appeal Act either to annul that order or to vary it. 37 Part 4 Div 2 of the Victim's Support and Rehabilitation Act 1996 (the Victims Act) provides, in s 77B: "(1) If a person is convicted by a court of an offence, the court may (on the conviction or at any time afterwards) on notice given to the offender direct that a specified sum be paid out of the property of the offender: (a) to any aggrieved person, or (b) to any aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted. (2) A direction for compensation may be given by a court on its own initiative or on an application made to it by or on behalf of the aggrieved person." 38 Section 77D identifies factors to be taken into account by the court in determining whether or not a direction should be made pursuant to s 77B. Section 77D provides: "In determining whether or not to give a direction for compensation, and in determining the sum to be paid under such a direction, the court must have regard to: (a) any behaviour (including past criminal activity), condition, attitude or disposition of the aggrieved person that directly or indirectly contributed to the loss sustained by the aggrieved person, and (b) any amount that has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted, and (c) such other matters as it considers relevant." 39 Any direction for compensation under s 77B is enforceable in accordance with s 77F, which provides: "(1) If a court gives a direction for compensation and the whole or any part of the amount specified in the direction is not paid in accordance with the direction, the registrar or clerk of the court must, on the application of the aggrieved person, issue to the aggrieved person a certificate: (a) that identifies the direction, and (b) that specifies the offender, and (c) that specifies the amount required by the direction to be paid that has not, as at the date of the certificate, been paid to the registrar or clerk. (2) If a certificate is issued under this section, the registrar or clerk must not subsequently accept any payment from the offender in respect of the direction for compensation identified in the certificate. (3) An aggrieved person may file such a certificate in the office or registry of a court having jurisdiction to order payment of the amount specified in the certificate, and the registrar or clerk of that court must immediately enter judgment in favour of the aggrieved person against the offender specified in the certificate for: (a) the amount specified in the certificate as having not been paid, and (b) any fees payable to the registrar or clerk in respect of the filing of the certificate. (4) A direction for compensation may only be enforced in accordance with this section and any amount not paid is not payable from any public money." 40 A direction for the payment of compensation does not prevent the person who sought the direction from bringing civil proceedings. However, s 77G provides against "doubling up" in the event that there are civil proceedings: "(1) This section applies to civil proceedings commenced or maintained in respect of a loss sustained by a person in respect of whom a direction for compensation has been given on the basis of the same facts as those on which the civil proceedings are based. (2) A direction for compensation does not affect a person's right to commence or maintain civil proceedings, and damages in the civil proceedings must be assessed without regard to the direction. (3) The judgment of the court in which the civil proceedings are determined: (a) must not be entered in respect of so much of the amount of damages assessed by the court as is equivalent to the sum of the amounts that have been paid under the direction for compensation, and (b) must not be enforced, except with the leave of the court, in respect of so much of the amount of damages assessed by the court as is equivalent to the sum of the amounts that have not been paid under the direction for compensation." 41 The sentencing judge was not assisted by any submissions concerning the claims under the Victims Act. As I see it, there are a number of relevant considerations here:

(i) the purpose of the statutory scheme is to compensate victims;

(ii) where co-offenders engaged in a joint enterprise cause damage to a victim's property, each has a liability as a tort feasor for the whole of the damage suffered. A tort feasor liable in respect of that damage may, however, recover contribution from any other tort feasor liable in respect of the same damage: see Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c). See also R v Van Hoang (2002) 135 A Crim R 244 and the judgment of Smart AJ at [38];

(iii) the asserted impecuniosity of an offender against whom a direction is sought pursuant to s 77B of the Victims Act ought not ordinarily be regarded as a reason for declining to make a direction under the section. An offender's impecuniosity may be temporary. His financial position may change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false;

(iv) section 77D(a) and (b) direct attention to important considerations on an application under s 77B. In the present case, of course, the applicant's criminal conduct directly contributed to the losses sustained by the parties for whose benefit the sentencing judge made the direction under consideration. 42 It is proper, of course, for a judge entertaining an application under s 77B to have regard to all the circumstances of the case. However, I do not consider that any ground has been established such as would call for this Court to annul the order under s 9(2) of the Criminal Appeal Act. 43 Nor do I consider in this case that the order should be limited to permit recovery only of one-half of the damage suffered. It may be, of course, that in a particular case co-offenders before the court at the same time each has assets capable of satisfying a claim for compensation. In such a case, it may be appropriate for the court to limit the terms of the order against a particular offender to some proportion of the total claim, rather than the whole of it. However, the present is not such a case and it seems to me in the present case those for whose benefit the direction has been made should not be so limited. 44 If the opportunity presents itself to enforce the direction against one or other offender, then the claimants should be able to take advantage of that opportunity, leaving the offender who satisfies a direction for compensation to pursue the other offender for contribution. 45 Of course, the directions under s 77B of the Victims Act ought not become an opportunity for victims to receive double compensation. Section 77B is intended in the language used in the section to provide "compensation for any loss sustained", and no more. 46 Here the directions against the applicant and Andrews overlap. In my opinion, it would be appropriate to vary the direction made by the sentencing judge in the case of the applicant by adding the words: "The liability under this direction is to be reduced by the amount of any payment made by Stephen Martin Andrews pursuant to the direction made against him on 20 May 2004, to the extent that such payment covers the same loss for which provision is made under this direction." 47 I propose the variation of the direction made by the sentencing judge accordingly.

Formal orders 48 Accordingly, I propose the following orders:

That the sentences imposed in respect of counts 2, 3, 4 and 5 be confirmed.

That the sentence imposed in respect of count 6 be quashed.

That in lieu thereof the applicant be sentenced to a non parole period of three years commencing on 20 November 2003 and to expire on 19 November 2006, and a balance of term of one year commencing on 20 November 2006 and to expire on 19 November 2007, and that the applicant be eligible for release on parole on 19 November 2006.

That the direction made in the case of the applicant pursuant to s 77B of the Victim's Support and Rehabilitation Act 1996 be varied by adding the words: "The liability under this direction is to be reduced by the amount of any payment made by Stephen Martin Andrews pursuant to the direction made against him on 20 May 2004 to the extent that such payment covers the same loss for which provision is made under this direction." 49 JAMES J: I agree with Studdert J. **********

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