O'Grady v Regina

Judgment 1HOEBEN CJ at CL: I agree with Bellew J. 2JOHNSON J: I agree with Bellew J. 3BELLEW J: Following a trial, the applicant was convicted of an offence of specially aggravated break and enter contrary to s. 112(3) of the Crimes Act 1900 (NSW). The offence was carried out in the company of two other persons, Bradley Carter ("Carter") and Robert Puha ("Puha"). 4The offence carries a maximum penalty of 25 years imprisonment, with a standard non-parole period of 8 years imprisonment. 5The applicant was sentenced by her Honour Judge Murrell to a non-parole period of 5 years and 6 months imprisonment, with an additional term of 3 years and 6 months. He is eligible for release on parole on 22 November 2015. 6The applicant seeks an extension of time in which to seek leave to appeal against the sentence imposed. The background to that application is set out in an affidavit of the applicant of 20 September 2013 along with an affidavit of Ruth Chalmers, solicitor, of 20 September 2013. In summary, shortly after he was sentenced the applicant instructed his then legal representatives to lodge a notice of intention to appeal against conviction and sentence. As events transpired, the appeal proceeded as one against conviction only. The applicant is not able to recall why it was that no application for leave to appeal against sentence was pursued. The appeal against conviction was dismissed by this Court on 30 September 2012 (see O'Grady v R [2012] NSWCCA 62). 7The applicant was advised by Ms Chalmers in February 2013 that there was likely merit in an application for leave to appeal against sentence on the basis of a so-called "Muldrock error" (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39). In Abdul v R [2013] NSWCCA 247 this Court explained in detail the background to, and the general nature of, such errors. 8Having received such advice from Ms Chalmers, the applicant completed an application for legal aid and thereafter the necessary documentation was obtained by Ms Chalmers, counsel briefed and submissions prepared. A Notice of application for leave to appeal was filed on 28 June 2013. 9The Crown has opposed the grant of an extension of time. THE FACTS 10The following summary is taken from the remarks on sentence. 11The victim, Brett Davis, lived with his partner in a secure apartment complex in Wolli Creek. On the night of 12 May 2008 the victim was at home alone when he heard a knock at the door. Upon opening it, he was confronted by three men who entered the premises. In the course of the attack which followed, the victim was rendered unconscious. He was subsequently hospitalised for a number of days, having suffered (inter alia) lacerations to the face and scalp (some of which required suturing) as well as a fractured right orbital floor. 12An inspection of the victim's apartment by police disclosed the presence of blood in and about the premises. Puha's fingerprints were found in various places inside. The right palm print and the left index fingerprint of the applicant were found on the interior of the door of the premises. 13Investigations led police to speak with Carter and Puha who were identified as two occupants of a stolen vehicle which was seen in and around the area of the victim's premises at the time of the commission of the offence. Police located a number of items identified as having been taken from the victim's premises within that stolen vehicle. 14When charged, Puha pleaded guilty and gave evidence for the Crown in the applicant's trial. His evidence, which the jury obviously accepted as accurate and truthful, was critical to the Crown case. 15Puha gave evidence that on the evening in question he was in the company of Carter and the applicant (to whom he referred as "Ace"). A substantial quantity of drugs and alcohol had been consumed before the trio "did a journey" which involved driving around for approximately 2 hours in the stolen vehicle. Their reason for doing so was connected to the fact that the applicant was said to have been in a "bad drug deal" and wanted to "rectify the situation with the dealer". The applicant told Puha that he wanted to "sort it out" with the dealer and that he wanted Puha there as "the muscle". 16After driving around for some time, the trio arrived in the vicinity of the victim's premises. They gained entry through the car park and then through the fire escape. The door leading from the fire escape into the residential section of the building was locked, but the applicant produced a screwdriver or similar implement which he used to try and force open the door. Carter and Puha were on the verge of abandoning the attempted entry when the applicant succeeded in getting the door open. 17All three of them then proceeded to the victim's apartment where they barged inside when the victim opened the door. The victim was pushed back onto a couch, and one of the three (whom the sentencing judge found was "probably" the applicant) demanded: "Where's the money? Where's the drugs?" 18The situation then erupted, with the victim becoming agitated and trying to fend off the three intruders. A significant assault ensued, which resulted in the victim's blood being splattered over his premises and the victim losing consciousness. Puha described the victim as "a mess". 19The applicant, Carter and Puha then commenced searching the premises, and randomly removed a number of objects including a television and a DVD player. They then drove away.

Submissions of the parties 33In addition to the matters contained in the lengthy written submissions which were filed, counsel for the applicant emphasised three aspects of the applicant's subjective case which, it was submitted, supported the conclusion that some lesser sentence was warranted. 34The first was the applicant's age, he having been 23 years old at the time of the commission of the offence. 35The second was what was described as the applicant's insignificant criminal record. Counsel pointed out, in particular, that such record did not include any offences of violence and that the present offending should thus be regarded as being out of character. 36The third concerned the circumstances in which the applicant had witnessed the death of his former partner, and the post traumatic stress disorder and increased drug dependence which had resulted. It was submitted that these circumstances were the real genesis of the offending. 37Counsel for the Crown relied upon the circumstances of the offending and the fact that there was significant violence. In doing so, the Crown stressed that the offending was in the nature of a home invasion, and relied upon decisions of this Court in support of the submission that such offences must be treated seriously, representing as they do a breach of the fundamental entitlement of every citizen to feel safe in his or her own home. 38The Crown also submitted that the offending was aggravated by the fact that the applicant was subject to conditional liberty at the time. For all of these reasons, the Crown submitted that no lesser sentence was warranted. CONSIDERATION AND CONCLUSION 39In the course of submissions before this Court counsel for the applicant described the applicant's subjective case as "compelling". It is true that one of the three subjective matters which were the focus of counsel's submissions, namely the results of the applicant having seen his former partner killed, was a unique circumstance. However the remaining two matters relied upon by counsel, namely the applicant's age and his lack of prior criminal history, are the type of matters regularly considered by sentencing judges. I do not, in these circumstances, regard the applicant's subjective case as compelling. 40In any event, it is clear from her express references to those matters that her Honour took all of them into account on sentence. It is also noteworthy that there was no evidence which enabled her Honour to have regard to any expressed contrition or remorse on the part of the applicant. 41Even when full weight is given to the fact that the applicant had no history of violence, his offending in the present case involved the infliction of serious injuries to the victim which rendered him unconscious and which saw him admitted to hospital for several days. Moreover, there has been no challenge in this appeal to her Honour's findings (at ROS 6, paragraph [15]) that it was the applicant who was: (i)motivated to seek out the victim; (ii)able to identify the victim's premises; and (iii)equipped with a screwdriver or similar implement in order to force entry. 42It is apparent that these matters led her Honour to conclude (at ROS 6, paragraph [15]) that the applicant was the orchestrator of the offence, a finding which has also not been challenged. 43This Court has consistently said that offending of this kind should meet with condign punishment. For example, in R v Hayes [1984] 1 NSWLR 740 Street CJ, in the context of observations regarding the increase in the commission of the offence of break, enter and steal observed (at 742): "The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts". 44In the same case, Lee J said (at 744): "The police and the criminal courts are all that a citizen has to look to protect him against the activities of criminals, and the courts have a duty to make clear that they recognise that, so far as our society is concerned, their prime responsibility is the protection of the community. (The sentencing judge's) remarks on sentence make quite clear that his Honour was not in doubt as to the court's responsibility. The community has the right to expect that the courts will use against crime the weapons which it has at its disposal, and that it will take stern measures in the face of repeated defiant criminal conduct involving breaking and entering." 45More recently, in Palijan v R [2010] NSWCCA 142 Barr AJ observed (at [22], McClellan CJ at CL and Hislop J agreeing): "It seems to me that a law-abiding member of the community is entitled to feel safe in his or her own home. There is to my mind something particularly repugnant about the forced entry of an offender into a house and violating the safety of that place by carrying out an attack". 46In my view, none of the matters advanced on behalf of the applicant support a conclusion that even if an extension of time was granted, substantial injustice arises out of the sentence imposed, or that some other sentence is warranted in law. ORDER 47I propose the following order: (i)The application for an extension of time is dismissed.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (5 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)

Cited By (7)