France v R

Postiglione v The Queen (1997) 189 CLR 295 CASES CITED : R v Clifford [2008] NSWCCA 190 R v MAK [2006] NSWCCA 381 R v Ponfield (1999) 48 NSWLR 327

PARTIES: Dean Robert France (Applicant) Regina (Respondent)

COUNSEL: M Johnston (Applicant) P A Leask (Crown)

SOLICITORS: Legal Aid Commission (Applicant) Solicitor for Pubic Prosecutions(Crown)

• 1 - IN THE COURT OF CRIMINAL APPEAL 2008/16002

JAMES J HOWIE J DAVIES J

1 JAMES J: I agree with Davies J. 2 HOWIE J: I agree with Davies J. 3 DAVIES J: The Applicant pleaded guilty on 8 October 2008 that between 11:37pm and 11:48pm on 30 August 2007 at Newcastle he did break and enter the department store of David Jones in Hunter Street Newcastle and steal property valued at $29,889.85 contrary to s 112(1) Crimes Act 1900. 4 On 14 November 2008 he was sentenced by English DCJ in the District Court to imprisonment for 3 years and 9 months with a non-parole period of 2 years, 9 months and 27 days commencing on 26 June 2008 (the date of his arrest) and the non-parole period expiring on 21 April 2011. The maximum penalty for the offence is 14 years imprisonment. There is no standard non-parole period. 5 The facts and circumstances giving rise to the offence are set out by her Honour as follows: "On 30 August 2007 at about 9.30pm the premises of David Jones Department Store in Hunter Street, Newcastle, were locked and secured by staff. Checks were also made of the home office electrical section of the store and it was observed that there was no damage to cabinets and all cabinet doors were locked.

At approximately 11.30pm on 30 August 2007 the offender gained entry to the department store via the multistorey car park. On the ground level entry to the car park wires were cut to the electrical control box for the metal roller door. On the first floor of the car park, the entry/exit doors to the store, metal frames, glass panel doors and metal fire door were damaged, and tool marks were later observed by police around the lock and frame areas. The door alarm sensors were also cut. A small silver-coloured Energiser brand torch and a metal pipe were later located by police near the doors.

Inside the department store on the second floor the offender smashed a number of glass display cabinets and numerous items of property were stolen, consisting of video, photographic, computer and navigational equipment. The total value of the property stolen was $29,889.85.

Blood was detected by police on one of the glass cabinet doors and a swab was taken by police for forensic analysis. DNA testing was carried out by the Division of Analytical Laboratories on the swab taken from the glass cabinet door and a reference sample taken from the offender. The offender was found to have the same profile as the DNA recovered from the swab. This profile is expected to occur in approximately one in 6.2 billion individuals in the general population." 6 The Applicant was born on 16 November 1971 and was aged 35 at the time of the offence and is now aged 38. 7 He has an extensive criminal history dating back to 23 February 1988 including a number of offences involving break, enter and steal. At the time he committed the offence the subject of the appeal he was on parole for an offence of common assault and had been released from custody on 25 May 2007. That parole was revoked for other reasons and he served the remainder of the sentence from 13 October to 27 November 2007 in custody. 8 On 18 January 2008 he was sentenced in the Newcastle Local Court for a number of offences include break and enter a building and commit an indictable offence. For that he was sentenced to imprisonment for 9 months to commence on 22 December 2007 to expire on 21 September 2008 with a non-parole period of 6 months to expire on 21 June 2008. He was released on 21 June 2008 only to be arrested on 26 June 2008 for the offence the subject of this appeal.

Subjective features 9 Her Honour noted the relevant subjective matters with respect to the Applicant as follows: "He was raised in a dysfunctional family environment and was the victim of child sexual assault. Whilst he is able to nominate the perpetrators and identify his co-complainants his attempt to bring the matter to the attention of authorities has been thwarted by his inability to be specific as to times and dates. He has discussed the matter with a co-complainant.

He is currently in a supportive relationship with the mother of his young child. She remains supportive whilst he remains drug-free and crime-free. If he chooses drugs and offending behaviour she will not support him.

He has spent a significant period of time in custody. He says because of his current classification and location at Grafton Gaol it is difficult to access drug and alcohol counselling. On a prior occasion whilst he was at Wellington Correctional Facility he was able to access work and programs and he participated in both.

He acknowledges that drugs are his downfall and so too are negative peers. He says he is trying to reduce his methadone so that when he is released he will not mix with the criminal elements who are also on methadone programs and with whom he has contact when he attends to receive his methadone. He acknowledges a need to enter residential rehabilitation and says that he will do so whether court-ordered or not. He needs to turn his life around.

His son is his motivating factor. He does have another child from a previous relationship but has nothing to do with that child. That relationship was apparently marred by drugs.

His education was disrupted due to the abuse he experienced as a child. He understands that his drug addiction is, more probably than not, as a result of that abuse also. He says at the time he committed this offence he was bingeing on benzodiazepines." Remarks on sentencing 10 Her Honour having noted the subjective matters, made reference to the Applicant's lengthy criminal antecedents. She described him as having an appalling criminal record and a record which included offences of a like nature. She said that served to demonstrate that the offence was not an uncharacteristic aberration but a course of criminal conduct that demonstrated a manifest disobedience of the law. She said issues of retribution, denunciation and protection of the community loomed large as a consequence. He was on conditional liberty at the time and was not entitled to any further leniency. 11 She said the offence was objectively serious having regard to the value of the property stolen, the damage occasioned to the premises and the fact that he was on conditional liberty at the time but took into consideration that the premises were commercial premises and that the goods taken were not of sentimental value as might be the case where they were stolen from residential premises. 12 She noted the plea of guilty and discounted the sentence by 25% for that plea, noting its utilitarian value and that it did demonstrate contrition. She said that apart from the plea it was difficult to find him truly remorseful and contrite, and she referred to the opinion of the Probation Service that any regret expressed by him appeared to be limited to the impact his offending behaviour had upon himself and his family rather than the victim of the offence and the community at large. 13 Her Honour thought that his prospects for rehabilitation remained extremely guarded. She said it would only be when he fully committed to residential rehabilitation and counselling to address the issues which arose from his childhood and led to his life of drugs and crime, and that it was only when he refrained from mixing with negative peers, that the community and his family could hope that his prospects would be enhanced. She noted that he acknowledged he was unable to reform on his own and that he needed help. Her Honour said only a sentence of full-time custody would satisfy the requirements of general and indeed specific deterrence. 14 She assessed the offence at falling below the mid range of objective seriousness. She said that a sentence of 3 years or less would not adequately punish him having regard to the objective seriousness of the offence committed and the circumstances of aggravation to which she had referred. 15 The Applicant seeks leave to appeal on 3 grounds: (1) The Sentencing Judge failed to adequately take into account totality. (2) The Sentencing Judge failed to sufficiently take into account the steps towards rehabilitation whilst in custody.

(1) Failing to take into account adequately the principle of totality 16 The Applicant submits that it was incumbent on the Sentencing Judge to consider the totality principle when passing sentence. The Applicant had effectively been in continuous custody from 22 December 2007 with the exception of the period 21-26 June 2008 being the period from his release on parole and his arrest for the offences under consideration. It was submitted that at the time the Applicant came to be sentenced he had already served a significant period in custody for offences closely related in time and character to the current offence. 17 As the Applicant acknowledges, the Sentencing Judge was aware that the Applicant had only just been released from custody at the time of the arrest for this offence. She twice referred to it, the second time in connection with his rehabilitation and the course that he had undertaken at Wellington Correction Centre. 18 It seems reasonably clear, however, that her Honour did not take into account that prior sentence when she came to sentence the Applicant. If that sentence and the sentence given for the offence under consideration are accumulated the Applicant would have received an overall sentence of 4 years and 3 months with a non-parole period of 3 years and 4 months. The non-parole period would therefore have been slightly more than 78% of the total sentence. In the light of s 44(2) Crimes (Sentencing Procedure) Act 1999 and the absence of any comment about that ratio from her Honour it seems likely that she did not have any regard to the prior sentence. 19 The totality principle applies in the present circumstances so that the earlier sentence ought to have been taken into account: Postiglione v The Queen (1997) 189 CLR 295 at 308; R v MAK [2006] NSWCCA 381 at [15]. 20 Nevertheless, taking into account the sentence imposed on the Applicant on 8 January 2008 which resulted in his incarceration from 21 December 2007 to 21 June 2008 the overall sentence of 4 years and 3 months with a non-parole period of 3 years and 4 months is not an excessive sentence for all of the offences and neither the overall length of the sentence nor the effective non-parole period warranted this Court's interference to reduce the ratio of the non-parole period with the total term.

(2) Failing to take into account sufficiently rehabilitation 21 Her Honour made a number of references about the Applicant's prospects for rehabilitation. She noted that she had been asked to extend him leniency to enable him to demonstrate an ability to commit to rehabilitation to turn his life around. In that regard she noted what he had achieved at Wellington Correction Centre. She found, however, that his prospects for rehabilitation remained extremely guarded. She held that it would only be when he fully committed to residential rehabilitation and counselling that there could be any hope that his prospects would be enhanced. She noted his acknowledgment that he was unable to reform on his own and that he needed help. 22 It is not made clear how this matter should have played out in terms of the sentence the Applicant was given. It seems to have been suggested to the Judge by the Applicant's counsel that the Applicant be given a short further period of custody with a period of total term of around 3 years with it being made a condition of his parole that he be released into residential rehabilitation. 23 It seems difficult to suggest that a sentence of 3 years and 9 months was outside the reasonable discretion of the Court particularly when a period of 3 years had been suggested on behalf of the Applicant. Although her Honour does not expressly refer to s 44(2) Crimes (Sentencing Procedure) Act 1999 she obviously had it in mind because of the very precise period of non-parole that she directed. For the non-parole period to have been reduced her Honour would have had to have decided that there were special circumstances for its being less. The only possibility on all of the evidence was the rehabilitation of the Applicant and a consideration of a residential rehabilitation course. 24 However, the only glimmer of hope in relation to rehabilitation was the completion of the course at Wellington Correction Centre. Against that was the Judge's finding that his prospects for rehabilitation remained extremely guarded, and his extensive criminal history which, on any view, warranted more than a short non-parole period in the circumstances. 25 It is not shown that her Honour failed to take into account sufficiently or at all his steps towards rehabilitation whilst in custody. (3) The sentence is manifestly excessive 26 The Applicant points to 2 matters in suggesting that the sentence is manifestly excessive. First, the premises were commercial premises and the property taken had no sentimental value. Secondly, when the previous custodial sentence (served from 22 December 2007 to 21 June 2008) was considered together with the sentence imposed by her Honour, the total sentence was excessive. 27 This matter has effectively been answered when considering the totality principle under Ground 1. The Applicant had an extensive criminal history, the offence concerned was committed whilst the Applicant was on conditional liberty, the offence showed a measure of professional planning, organisation and execution, damage was done to various items of property and the value of the goods stolen was not insignificant. These were all matters that were identified as factors which enhanced the seriousness of the offence in R v Ponfield (1999) 48 NSWLR 327 at [48]. 28 In R v Clifford [2008] NSWCCA 190 Price J said at [65]: "This Court in R v Harris (2007) 171 A Crim R 267 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. To my mind, there is no good reason why what was said in Harris should not apply to repeat offenders who break into business premises." 29 It cannot be said that a notional starting point of 5 years with a full 25% discount for a guilty plea was a manifestly excessive sentence in all the circumstances. There was no error in her Honour not finding special circumstances to reduce the non-parole period. This ground fails. Conclusion 30 In my opinion, leave should be granted but the appeal should be dismissed.

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