Holman v Regina

Court of Criminal Appeal (NSW)|2006-07-28|Before: McClellan CJ, Kirby J, Hoeben J, Clellan CJ

CITATION: Holman v Regina [2006] NSWCCA 227

JUDGMENT OF: McClellan CJ at CL at 1; Kirby J at 2; Hoeben J at 6

DECISION: Leave to appeal granted - appeal dismissed

CATCHWORDS: SENTENCE APPEAL - submissions not put in accordance with instructions - rehabilitation - use of previous criminal record.

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

Pearce v R (1998) 194 CLR 610 CASES CITED: R v Fordham (1997) 98 A Crim R 359 R v Webster [2005] NSWCCA 110 Veen v R (No 2) (1988) 164 CLR 465

PARTIES: Michael Patrick Holman - Plaintiff Crown - Respondent

COUNSEL: Applicant in person DML Woodburne - Crown

SOLICITORS: Applicant in person S Kavanagh, Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2006/786

McCLELLAN CJ at CL KIRBY J HOEBEN J

Friday, 28 July 2006 Michael Patrick HOLMAN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hoeben J. 2 KIRBY J: On this appeal the applicant represented himself. He presented as both intelligent and articulate. Fundamentally, his complaint was that the sentence had not been backdated to the date of his arrest on 17 August 2004. However, for the reasons explained by Hoeben J, there was no error in the selection of the commencement date of the sentence (1 June 2005), having regard to the revocation of parole by the Parole Board on 5 August 2004 and the requirement that the applicant serve the balance of his term (which expired on 24 October 2005). 3 Nonetheless, it must be said that the applicant spoke convincingly and movingly concerning his resolve to break the destructive cycle of his life to this point. He said that, for the first time in a long while, he was drug free. He believed that he had grown up. He recognised that he was still a young man, and could yet do something with his life. He also recognised that he had been given many opportunities in the past, which he had squandered. He was anxious that this should not occur in the future. 4 Whilst it was not possible to alter the sentence he must serve, there being no error, his resolve, which appeared sincere, augers well for his early reclassification and ultimate rehabilitation once released to parole. 5 I agree with the orders suggested by Hoeben J and with his reasons. 6 HOEBEN J: Offences and sentence On 1 June 2005 the applicant was sentenced by Delaney DCJ as follows:

Date of Offence Offence Max Penalty Sentence Count 15/07/04 Having been convicted of indictable offence (BES), commit offence of enter building at 85 Eddy Rd Chatswood, with intent to commit indictable offence s.115 Crimes Act Imprisonment for 2 years 6 months to date from 1 June 2005 and expire 30 November 2007 (wrongly stated to be 31 December 2007) 1 10 Years Count 15/07/04 Break, enter and steal - 15 Colwell Crescent, Chatswood West s.112(1) Crimes Act Taking into account Form 1, sentenced to imprisonment for 3 years to date from 1 June 2005 and expire 31 May 2008. 2 14 years Form 15/07/04 Enter enclosed lands - 74 Beaconsfield Rd Chatswood West s.4(1) 1 Inclosed Lands Protection Act s.112(1) Seq 1 12/08/04 Break, enter, steal 60 Speers Rd, North Rocks Crimes Act Imprisonment for 3 years to date from 1 December 2005 and expire 30 November 2008. 10 years s.113(1) Seq 2 17/08/04 Break, enter with intent to steal 161 North Rocks Rd, North Rocks Crimes Act Imprisonment for 1 year to commence 1 December 2005 and expire 30 November 2006 10 years s.112(1) Seq 3 Break, enter and steal 148 North Rocks Road, North Rocks. Crimes Act Imprisonment with a non-parole period of 3 years to commence 1 December 2005 and expire 30 November 2008, with a balance of term of 2 years to expire on November 2010 14 years

7 By reason of accumulation, the effective term of imprisonment was a non-parole period of 3 years and 6 months with a balance of term of 2 years. The applicant pleaded guilty in relation to those matters at the Parramatta Local Court on 14 October 2004. 8 By Notice of Application for Leave to Appeal filed 28 March 2006 the applicant (who appears for himself) seeks the leave of the Court to appeal against the severity of the sentences imposed upon him on 1 June 2005.

Factual background to offences 9 In order to appreciate the approach which his Honour adopted to sentencing the applicant, it is necessary to understand the sequence of events leading up to the offences. 10 On 3 July 2004 the applicant was released to parole in respect of unrelated matters. On 15 July 2004 the applicant committed the three offences in the Chatswood area. On 26 July 2004 the applicant was released on bail. On 5 August 2004 the Parole Board revoked the applicant's parole. On 12 August 2004 the applicant committed the offence at Northbridge. On 17 August 2004 the applicant committed the two offences at North Rocks. When the applicant was arrested on 17 August 2004 he commenced to serve the balance of his parole, which was 1 year 2 months and 8 days to expire on 24 October 2005. 11 Count 1 - On 15 July 2004 at 1.30pm Joan Hunt aged 82 was inside her home at 85 Eddy Avenue, Chatswood. She saw the applicant inside her home. When questioned by her he claimed to be looking for a tradesman. The police were called and the applicant was arrested later that afternoon. 12 Count 2 - On 15 July 2004 at 1.40pm Margaret Beaumont aged 72 was sitting on her veranda at 15 Colwell Crescent, Chatswood. As she was doing so, the applicant gained entry to her house by removing flyscreens from a rear window. In due course Ms Beaumont saw the applicant in her house. Initially she thought it might have been her son, but when she realised it was not she ran from the house. The applicant stole her wallet containing six $50 notes, credit cards and a health card. A further $100 of unknown denomination was stolen from her bedside drawer and a couple of $20 notes were taken from a wallet within that drawer. The police were called. 13 Form 1 - On 15 July 2004 at 2.10pm a builder working at residential premises at 74 Beaconsfield Road, Chatswood West saw a male dressed in black, shiny tracksuit pants and a grey top walking through those premises. When challenged the applicant falsely claimed that he knew the owner of the premises and said that he was looking for work. 14 When the applicant was arrested on 15 July 2004 his appearance matched the various descriptions which had been given to the police. Police found $350 in $50 notes and $100 in $20 notes on his person. 15 Sequence 1 - at 2.45pm on 12 August 2004 Noel Perrott and his mother Ethel (aged 76) were gardening in the front yard of their home at 60 Speers Road, North Rocks. The applicant was observed in the driveway of the next-door premises. When Mr Perrott entered his house, he found that access had been gained through a rear door and that $1,500 in cash had been stolen from his bedroom together with seven gold rings from Ethel Perrott's bedroom. 16 Sequence 2 - On 17 August 2004 Mr Perrott and a Mr Fulton were driving along North Rocks Road when they recognised the applicant. They saw the applicant walk into the rear yard of 161 North Rocks Road before seeing him return and try to open the front door of the premises. 17 Sequence 3 - On 17 August 2004 the applicant entered premises at 148 North Rocks Road which were occupied by three elderly people. The applicant stole the wallet of one occupant, Mr Sonter (aged 86), which was on the kitchen table. It contained four-five $50 notes and a $20 note. The applicant was observed to leave those premises carrying the wallet. The applicant was arrested later that day.

Subjective matters 18 The applicant was born on 13 April 1971. He has an extensive criminal history extending back to 1991. During the 1990's the applicant had many convictions for property offences, larceny, break enter and steal, possessing implements to administer a drug and stealing from a dwelling house. He has received sentences of imprisonment, most of which have been for short periods, since the majority of offences were dealt with at the Local Court level. 19 The applicant had unsuccessfully participated in the Drug Court program. Many years before he had attended Odyssey House but had relapsed into drug use. At the time when he was sentenced, the applicant was on a methadone program. A letter was tendered to the court from the Salvation Army confirming that the applicant would be accepted into its Bridge program, "once he had achieved a total reduction from the methadone program he is currently on". 20 Evidence was given by his mother and father. Despite the applicant's criminal record and drug addiction, they were prepared to stand by him and to help him rehabilitate. They thought the explanation for the applicant's conduct was his drug addiction. 21 The applicant gave evidence that he now understood the serious nature of his offending and that he was now not only remorseful and contrite but very keen to undertake rehabilitation notwithstanding the fact that he had failed to take similar opportunities in the past. 22 His Honour had before him a report from Dr Olav Nielssen, a psychiatrist. Dr Nielssen recorded a history that the applicant's father was a successful tailor with several employees and that his older two brothers were successful, one being a bricklaying contractor with employees and the other, self-employed. Both brothers were married with children. The whole family were good sportsmen, who had excelled in rugby union and rugby league, except for the applicant. 23 Because of his heroin addiction the applicant's employment had been sporadic. He had worked at different times for his father and his brothers. His abuse of heroin commenced when he was about 22. He attributed his heroin addiction to his feelings of failure by comparison with other family members. 24 The applicant told Dr Nielssen that his experiences in prison had been terrible. They had included sexual assaults and physical assaults. He had consequently applied to be placed in protection while in prison. He told Dr Nielssen that his experiences in prison had contributed to his resumption of heroin use upon his release. 25 Dr Nielssen described his affect as anxious and flat and that his underlying mood was significantly depressed. Dr Nielssen did not report any psychotic illness and there were no delusions. The applicant's concentration during the interview was intact. His Honour found this accorded with his impression of the applicant when he was giving evidence. His Honour thought the applicant addressed himself appropriately and directly to the questions that were put to him.

Remarks on sentence 26 His Honour made the following findings. His Honour was satisfied that the applicant had pleaded guilty at an early opportunity and was therefore entitled to a discount of 25%. His Honour did not, however, accept the applicant's expressions of remorse and did not think that such expressions should carry any significant weight. 27 His Honour did not think highly of the applicant's prospects of rehabilitation. He was not prepared to apply s11 of the Crimes (Sentencing Procedure) Act 1999. It was his Honour's opinion that the applicant had been given many opportunities for rehabilitation which he had not taken in the past and his Honour could see no reason why the applicant was likely to avail himself of such opportunities as of the date of sentencing. His Honour was of the opinion that the applicant's primary motivation in expressing a desire for rehabilitation was that he realised that he faced an extensive period of imprisonment. 28 His Honour referred specifically to R v Webster [2005] NSWCCA 110 and Veen v R (No 2) (1988) 164 CLR 465 in that there had been constant offending by the applicant of a similar nature over a long period of time and that retribution, deterrence and the protection of society indicated that a more severe penalty was warranted in respect of the applicant's offences. His Honour thought that the applicant's antecedent criminal history illuminated his moral culpability of the applicant. 29 His Honour was satisfied that the applicant would serve all or part of his sentence in protection and that that was a matter which needed to be taken into account. He had regard to the applicant's drug problem, which explained his behaviour but did not excuse it. His Honour also had regard to the conclusions of Dr Nielssen, but was not satisfied that the applicant had a mental problem such as would reduce the weight to be given to both general and specific deterrence. 30 In relation to special circumstances, his Honour found: "I find that there are in this case special circumstances within the meaning referred to in R v Fidow and I propose to alter the ratio for any sentence where a non-parole period is imposed to take account of special circumstances which I find to be (1) his need for drug rehabilitation, (2) his need to be rehabilitated back into the community with appropriate employment and (3) the likelihood that the sentence that I will impose will be accumulated." (ROS 21.1) 31 His Honour then had regard to the objective seriousness of the offences, in particular their number, the fact that the offences were planned, that some were accompanied by vandalism or significant damage to property and that the value of the property taken was substantial. His Honour referred to the principle of totality, but also noted that appropriate sentences had to be awarded for each offence in accordance with Pearce v R (1998) 194 CLR 610. His Honour was told about the revocation of the applicant's parole and that he would, in any event, be in custody until 24 October 2005.

Ground of Appeal 1: "I am appealing due to poor representation I received from Legal Aid, I had five different solicitors and not one of them followed my instructions nor did they spend any longer than approximately 10 minutes on legal visits." 32 In his written submission the applicant set out a number of his complaints concerning his legal representation:

(a) Poor legal representation, I had five different Legal Aid solicitors, I never seen them until I arrived at court and then for only five minutes before going to court.

(b) I was entering a guilty plea from the very start and just wanted to be sentenced. I told the solicitors again and again to not seek adjournments as I could see that the judge was getting angrier and angrier.

(c) I didn't get the opportunity to state my case in regards to sentencing as my solicitor spent several court appearances with myself and my mother and father in the witness box trying for some sort of section 11 to have me sent to a Rehab, despite my repeatedly telling the solicitor I just wanted to plead guilty and be sentenced.

(d) I didn't get to say several things that I wanted to say because my solicitors repeatedly ignored my instructions. 33 It should be noted that the applicant was represented at the sentence proceedings before Delaney DCJ. In the proceedings in this Court as indicated, the applicant appeared for himself. His written submissions were supplemented by oral submissions, very much to similar effect. 34 There are two major problems facing the applicant in relation to the submissions. The first and most obvious is that identified by the Crown. This Court is a court of error. Unless error in the sentencing process is identified, the jurisdiction of the Court is not activated and the Court cannot and should not interfere. These submissions do not go to error of that kind. In any event, the applicant has not identified what evidence or what material which ought to have been placed before the Court, but which was not, so as to have produced a different result (R v Fordham (1997) 98 A Crim R 359). 35 The second matter is that an examination of the transcript of the proceedings before Delaney DCJ, particularly on 16 and 18 March 2005, show that the sentencing proceedings were lengthy and detailed with extensive evidence being given by the applicant and by his mother and father. It is difficult to see what additional material could possibly have been placed before the sentencing judge. Certainly nothing was identified in the oral submissions by the applicant which should have been put before his Honour but which was not. Given his appalling criminal record and the sequence of offences for which he was being sentenced, all of which occurred whilst he was at conditional liberty, the most powerful submission available to him was to persuade the sentencing judge that his remorse and desire for rehabilitation were genuine. This argument was forcefully put on his behalf, even though it ultimately proved to be unsuccessful. 36 This ground of appeal is not made out.

Ground of Appeal 2: "I do not believe the sentencing judge sentenced me correctly in relation to the manner in which I would serve my sentence and also the dates in which my sentences were to commence and end." 37 In his written submissions, supplemented by oral submissions, the applicant said: "I feel I was judged and sentenced more on my past and several things including the fact that I will serve my entire sentence in a cell on non-association due to giving evidence against other inmates were overlooked." 38 That submission does not do justice to the detailed manner in which his Honour approached the sentencing process. Although it may have seemed to the applicant that his Honour was treating his prior criminal record as an aggravating factor (the distinction between moral culpability for the offence and the moral culpability of the offender in Veen No 2 not being an easy concept to understand) his Honour in fact did not do this. His Honour was careful when dealing with the applicant's prior criminal record to apply the principle in Veen No 2, rather than treat it as an aggravating factor. 39 His Honour also referred specifically on more than one occasion to the fact that the applicant would be serving most of his sentence in protection. His Honour was also conscious of the difficulties which the applicant had experienced in the past within the prison system in that he had been assaulted. In those circumstances it cannot be said that his Honour failed to consider those matters. 40 In relation to the start and finishing dates for the various sentences imposed by his Honour, none of the sentences were totally cumulative. There was a significant degree of concurrency present. Specifically there was considerable concurrency between counts 1 and 2 and the period which the applicant was to spend in custody as a result of the revocation of his parole in that the sentences for these offences were to start on 1 June 2005. Given the nature of the offences, the fact that different victims were involved and the fact that they were committed whilst the applicant was at conditional liberty, some accumulation of the sentences was inevitable. His Honour would have been in error to have done otherwise. The extent of accumulation in the sentences does not bespeak error. 41 This ground of appeal has not been made out. 42 The order which I propose is that leave to appeal be granted but that the appeal be dismissed. **********

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Judgment (24 paragraphs)

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Cases Cited (3)