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[2002] NSWCCA 219
respondent. Leave to appeal granted; appeal dismissed. The six-year sentence and four-year-and-six-month non-parole period were not disturbed: [2], [33], [41]-[42].
Proud received six years' imprisonment for a break-in in which he stole $40,000, with four other break-ins taken into account. The Court accepted that one description of the offending as professional was marginally inaccurate, but considered it did not affect the sentence. It also considered his background, guilty plea and rehabilitation efforts, alongside the seriousness of the offences and his record. Leave to appeal was granted, but the appeal was dismissed because the Court did not consider another sentence warranted in law.
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The New South Wales Court of Criminal Appeal considered Jason James Proud's application for leave to appeal against the severity of a sentence imposed by Armitage DCJ. The appeal concerned one offence of break, enter and steal under s 112 of the Crimes Act 1900. Four further break-and-enter offences were taken into account on a Form I under the Crimes (Sentencing Procedure) Act 1999. The orders were that leave to appeal be granted and the appeal be dismissed: Dowd J at [33], with Smart AJ agreeing at [41]-[42].
No linked legislation citations have been extracted yet.
The principal offence occurred at Charlestown on 26 July 2000. Proud gained entry to a private unit by smashing a toilet window with a rock. In a bedroom, he broke into a locked bedside-table drawer and stole $40,000 from three small red tins. The judgment records that the money was the 68-year-old victim's life savings and included money she had received from her husband after his death: [3].
The four other offences were separate break-ins. Paragraphs [4]-[7] give the dates and property values. They describe stolen property valued at $14,000 to $15,000, approximately $10,000, approximately $10,000, and $7,000. Smart AJ summarised the total amount taken across the offences as approximately $82,000: [34]. There is a date inconsistency in the judgment: [4] says the Form I offences occurred between September 2000 and March 2001, while [7] gives the date of the fourth offence as 3 March 2000. The judgment does not resolve that discrepancy.
The sentencing judge imposed six years' imprisonment with a non-parole period of four years and six months. The sentence commenced on 10 July 2001: [2]. Proud sought leave to appeal, arguing, among other things, that the sentence was manifestly excessive, that his background and rehabilitation deserved greater weight, that the sentencing judge overstated the professionalism of the offending, and that his custodial history should affect the non-parole period: [18], [24], [28], [36]-[40].
The court's reasons are those of Dowd J at [1]-[33] and Smart AJ at [34]-[41]. Dowd J delivered the proposed orders at [42]. The case is not a trial judgment deciding guilt. Proud had pleaded guilty, and the court was reviewing the sentence on appeal.
The central appellate constraint was that error alone was not enough to justify substituting a sentence. Dowd J cited s 6(3) of the Criminal Appeal Act 1912 and the principles in House v The King. He quoted the passage from R v Simpson explaining that the Court must form a positive opinion that another sentence is warranted in law and should have been passed: [17]. The conclusion at [32] follows that structure: Dowd J said the sentence was proper and that, even if error had occurred, he did not consider another sentence warranted under s 6(3).
The court assessed seriousness in the context of the principal offence and the four offences taken into account. The principal offence involved a large theft from an elderly woman's home, while the additional offences substantially enlarged the criminality to be reflected in the sentence: [3]-[7], [23], [34]. The Crown relied on seriousness factors identified in R v Ponfield, including a prior record, offences committed while on conditional liberty, multiple offences, and the value of stolen property to victims: [19]. The Court acknowledged that some of those factors were present and stressed that objective seriousness had to be considered alongside subjective features: [21].
The subjective matters were substantial in the narrative but were not treated as dispositive. The judgment records Proud's difficult childhood, early exposure to drugs, disrupted family life, employment history, marriage breakdown and expensive heroin use: [9]-[13]. It also records his participation in prison drug and alcohol programmes and a counsellor's account that he gave peer support to other inmates: [15]. Dowd J said the sentencing judge had acknowledged matters in Proud's favour, including rehabilitation and the utilitarian value of his plea: [15], [21]-[22].
The court's discussion of remorse was more specific than a simple expression of regret. Dowd J stated that remorse could involve cooperating with authorities by explaining what happened to the stolen funds and identifying other people involved. He noted that Proud had not given that assistance to police: [24]. The judgment does not say that this consideration alone determined the appeal. It appears as part of the overall evaluation of remorse and mitigation, alongside the serious offending and criminal record: [25], [32].
The court also considered whether the sentencing judge's description of the offending as professional affected the result. Smart AJ thought that description marginally incorrect, but reasoned that the judge understood the actual conduct, including checking whether anyone was home before entering, and had concentrated on that conduct: [37]-[38]. Dowd J similarly regarded the reference to professionalism as a slight elevation of the applicant's modus operandi, but concluded that the sentence remained proper in light of the seriousness factors and the lack of effective remorse: [31]-[32].
Finally, the court rejected the argument that accumulated custody required a lower sentence or non-parole period. Dowd J treated the effect of repeated custody as a possible rehabilitation-related factor, not a totality principle automatically controlling the result: [28]-[30]. The matter was sentence for one offence, with four other offences taken into account, rather than an accumulation of individual sentences: [30]. Smart AJ also cautioned that the approach in Brown required considerable circumspection, because its use should not produce inadequate sentences: [40].
This judgment applies and explains sentencing appeal principles already in force. It does not purport to create a new statutory test. For sentence appeals, it restates that the Court of Criminal Appeal's power to substitute a sentence under s 6(3) is conditioned on the Court forming the required positive opinion that a different sentence is warranted in law: [17]. That requirement means the analysis is not complete merely upon identifying a possible error.
On sentencing for break, enter and steal, Dowd J set out the seriousness factors from Ponfield, including prior offending, conditional liberty, harm or trauma to victims, the value of property, and the multiplicity of offences: [19]. The judgment then emphasised that those factors must be considered in the circumstances of the case, with appropriate weight also given to mitigation and rehabilitation: [20]-[21]. It does not say that every factor applies in every case, or that the listed factors determine a particular sentence.
The judgment also describes the statutory treatment of guilty pleas. Relying on Sharma, Dowd J stated that s 22 of the Crimes (Sentencing Procedure) Act 1999 had amended the common law in relation to how the utilitarian value of a plea is assessed. In the passage reproduced at [22], the relevant point is that objective considerations are not excluded by the subjective perspective of willingness to facilitate justice.
For non-parole periods, Dowd J explained the relationship between s 44(1) and s 44(2). A non-parole period is required, and a period below three-quarters of the sentence requires special circumstances. In his explanation, those circumstances must be the reasons for setting the period below three-quarters: [26]-[27]. The judgment does not supply a comprehensive definition of special circumstances.
As to totality, the court draws a distinction rather than setting out a general formula. It accepts that the accumulated-custody concern raised through Brown may be relevant, but warns against elevating one factor into a rule: [28]-[30]. The court's application depended on its characterisation of this case as a sentence for one offence, with other offences taken into account, rather than an accumulation of separate sentences: [30]. The judgment itself supplies no account of the law after 2002 or any later treatment by courts.
At [17], Dowd J quotes Simpson on the need for the Court to be positively satisfied that another sentence should have been imposed. In plain English, an appeal is not allowed simply because the appellate court can identify something that may have gone wrong. The statutory condition for substituting a sentence must also be met.
At [19], the judgment reproduces Ponfield's list of factors that can increase the seriousness of a break-and-enter offence. The list includes repeat or multiple offending, prior convictions, conditional liberty, the vulnerability of premises' occupants, damage, and the value of property to victims. In plain English, the court's task is to assess what makes the particular offending more serious, not just to classify it by the offence label.
At [20], Dowd J notes that drug or alcohol addiction is relevant but is not, by itself, a mitigating factor. He also refers to genuine remorse and rehabilitation. In plain English, the existence of addiction does not automatically reduce a sentence; the sentencing court considers it alongside other circumstances and evidence of the offender's response.
At [27], Dowd J says special circumstances do not stand alone. In plain English, the court must identify why the case justifies a non-parole period below the statutory three-quarters benchmark, rather than treating the phrase as an independent label.
At [29], Dowd J warns against elevating a relevant factor into a principle of totality. In plain English, a court may consider how a long or repeated period in custody affects rehabilitation, but that consideration does not automatically control the sentence.
At [37]-[38], Smart AJ accepts a limited inaccuracy in the sentencing judge's description but says it did not matter to the outcome. In plain English, an imprecise label need not invalidate a sentence where the judge understood the actual conduct and the label did not distort the assessment.
The judgment is most directly relevant to sentence appeals involving break, enter and steal where the court must assess a principal offence together with other offences taken into account. Here, there was a serious theft from an elderly person's home and four further break-ins, which the court considered together when assessing the criminality to be reflected in the sentence: [3]-[7], [23], [34].
It is also relevant where a ground of appeal alleges that a sentencing judge used an inaccurate description of how an offence was carried out. Smart AJ's analysis distinguishes a minor misdescription from an error that affects the sentencing result: [37]-[38]. The point turns on the actual facts and on whether the judge's assessment was materially shaped by the inaccurate label.
The totality discussion may be pertinent where an offender argues that prior or future periods in custody have a cumulative or crushing effect. The judgment treats that effect as a possible factor, while insisting on care before treating it as a controlling principle: [28]-[30], [39]-[40]. Its reasoning is specifically tied to the distinction between accumulation of sentences and sentencing for one offence with further matters taken into account.
The decision also addresses cases where the offender relies on addiction, a difficult personal history, a guilty plea or rehabilitation. It shows the court considering these matters together with offence seriousness and criminal history, rather than treating any one of them as determinative: [9]-[15], [18]-[25]. The judgment does not establish that the same weight must be given to those matters in every case.
The judgment text provides no later decisions applying, distinguishing, approving or questioning R v Proud. It therefore does not support a claim about how subsequent courts have treated it. The cases identified in this judgment are authorities the court cited or discussed in 2002; they are not evidence of later treatment.
The authorities expressly used in the reasons include House v The King and Simpson on appellate review, Ponfield on seriousness factors, Sharma on guilty pleas, and Brown on the possible relevance of accumulated custody: [17], [19], [22], [28]-[30]. The judgment's own treatment of those authorities can be described, but it cannot establish whether later courts have followed or limited Proud's reasoning. A later-treatment analysis would require later judgments or another supplied legal source.
Several matters remain outside what this judgment determines. First, the decision does not provide a general definition of special circumstances. It explains the function of the phrase in the particular statutory relationship between the non-parole period and the three-quarters benchmark: [26]-[27].
Second, it does not specify when the effect of accumulated custody should influence sentence length or the non-parole period. It says the factor may be considered and cautions against turning it into a general totality principle: [28]-[30]. The judgment gives no exhaustive criteria for deciding when the factor should carry weight.
Third, the judgment does not provide a quantitative sentencing range for break, enter and steal, or a formula for adjusting a sentence for a guilty plea, rehabilitation, or the number and value of offences taken into account. It records the applicant's submission about a notional starting point and discount, but its conclusion rests on the circumstances and statutory appellate test rather than a general numerical rule: [18], [25], [32].
Fourth, the court does not resolve the date discrepancy at [4] and [7] about one Form I offence. Nor does it decide what effect, if any, that discrepancy might have had on the sentencing assessment. The reasons proceed to the appeal's overall seriousness assessment without expressly addressing the inconsistency.
Finally, the judgment gives no later-case history. Any account of subsequent judicial treatment, or of the law as it stands now, would need legal sources beyond the judgment supplied here.
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CITATION : R v Jason PROUD [2002] NSWCCA 219 FILE NUMBER(S) : CCA 60787/01 HEARING DATE(S) : 24/05/2002 JUDGMENT DATE : 24 May 2002
PARTIES : REGINA v Jason James PROUD JUDGMENT OF : Dowd J at 1; Smart AJ at 34
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/31/0331 LOWER COURT JUDICIAL Armitage J OFFICER :
COUNSEL : Mr P G Ingram - Crown Mr A P Cook - Applicant SOLICITORS : S.E. O' Connor - Crown Legal Aid Commission -Applicant CATCHWORDS : Appeal against severity of sentence - matter taken into account-need to find error-need to find appropriate sentence Crimes Act 1900 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 R v Brown (2000) NSWCCA 428 Cameron v The Queen (2002) HCA 6 R v Henry 46 NSWLR 346 House v The King (1936) 55 CLR 499 CASES CITED: Pearce v The Queen (1998) 72 ALJR 1416 R v Ponfield (1999) 48 NSWLR 327 R v Sharma (2002) NSWCCA 142 R v Simpson (2000) NSWCCA 534 R v Thompson and Houlten (2000) 49 NSWLR 383 DECISION : Leave to appeal granted - Appeal dismissed
DOWD J SMART AJ
24 MAY 2002 R v Jason James PROUD Judgment 1 DOWD J: The applicant sought leave to appeal against sentences imposed by Armitage DCJ on 15 November 2001, for a count of break, enter and steal, an offence contrary to s112 of the Crimes Act 1900 ( "the Act"), four matters also in breach of s112 of the Act, taken into account on a Form I, pursuant to s33 of the Crimes (Sentencing Procedure) Act 1999. The maximum penalty for an offence under s112 of the Act is fourteen years imprisonment. 2 The applicant pleaded guilty and was sentenced to a six-year term of imprisonment for the offence for which he stood for sentence, His Honour the Learned Sentencing Judge taking into account the four matters on the Form I. The sentence commenced on 10 July 2001, to expire on 9 July 2007, with a non-parole period of four years and six months, to expire 9 January 2006. 3 The offence for which the applicant stood for sentence was committed on 26 July 2000, at Charlestown in the Newcastle region, between 1pm and 4pm. The applicant gained entry to a private home unit owned by a sixty-eight-year-old woman, by smashing the toilet window with a rock. On accessing the premises, the applicant went into the bedroom, punched a hole in the base of the bedside table drawer, which had been locked, and stole cash held in three small red tins, being an amount of $40,000, this being the life savings of the victim and money she had received from her husband upon his death. 4 The four offences on the Form I occurred between September 2000, and March 2001. The first offence occurred on 26 September 2000 when the applicant broke into premises at North Belmont by smashing a glass panel in a door and stole property worth between $14,000 and $15,000. 5 The second offence occurred on 15 November 2000, when the applicant broke into a private house at Swansea by kicking in the back door and thereupon stole property to the value of some $10,000. 6 The third offence on the Form I occurred on 30 December 2000, when the applicant broke into a house at Mount Hutton by forcing the door open and stole property to the value of $10,000. 7 The fourth Form I offence occurred on 3 March 2000, when the applicant smashed the glass panel of the front door of a house in Mount Hutton and stole property worth $7000. 8 It is extraordinary that such large sums of money are kept in people's private homes.
Subjective Matters 9 The applicant was born on 28 March 1972, being twenty-nine years of age at the time of sentence, and twenty-eight at the time he committed the crimes. He is the eldest of eight siblings and had had a very difficult childhood, with grossly inappropriate parenting. His natural father encouraged him to fight and to take drugs from a very early age. He left school halfway through year ten. He spent some time during his childhood in foster care due to problems at home. The applicant left home at the age of thirteen following the break-up of his parents' relationship and some time after his mother had commenced a new relationship. 10 The applicant was married in 1992 but was separated by 1996. He has two children aged seven and eight respectively. He worked for some four to five years as a brickies labourer straight after leaving school. Following that, he worked as a builder's labourer for some one and a half years and then did a horticultural course in landscape gardening. He played Rugby League with the Parramatta Eels up to the age of nineteen and played representative football for the Western Suburbs Under 21s. 11 Following separation from his wife in 1996, the applicant described his life as "going downhill". The Learned Sentencing Judge found that the applicant commenced using intravenous heroin and amphetamines following the break-up with his wife. The applicant developed an expensive heroin habit, spending up to $500 a day on drugs at the time of his arrest. 12 The Learned Sentencing Judge summed-up his criminal history in the following terms: "He has a criminal record commencing in 1989. That record contains many offences of dishonesty. In 1991 he was sentenced at the Campbelltown Local Court to a minimum term of nine months with an additional term of three months for stealing a motor vehicle. On appeal that was reduced to a fixed term of imprisonment of six months. In July 1994 he appeared before the Liverpool Local Court on a charge of break, enter and steal. He was bound over on recognisance, self in the sum of $1000 to be of good behaviour for four years and to accept the decision. He was called up for breach of that recognisance on 13 September 1995. I notice that it was apparently ordered, as it appears on the record, that he reside at Odyssey House. As I say, there are many other offences of dishonesty, including larceny in July of 1997, steal from a person April 1999, goods in custody in January of this year. In my view he has been given opportunities in the past and has not really availed himself of them. The best that can be said of that record is that it is of no assistance at all to the offender." 13 The applicant's evidence before His Honour was that he had little recollection of the events during that period, and particularly during the time that he committed the offences for which he was charged, as he was heavily intoxicated by drugs on a daily basis. 14 It was submitted on behalf of the applicant that there was no violence in the crimes committed by the applicant and they were not timed to coincide with occupancy, which facts Armitage DCJ accepted. 15 The applicant has endeavoured to turn around and change his ways during his time in prison immediately commencing a drug and alcohol rehabilitation course and a report to that effect was provided to His Honour signed by a Len Steel, a drug and alcohol counsellor, which stated: "Mr Proud participated in a willing and constructive manner in the abovementioned programs with the alcohol and other drug induction programs we provide to all new inmates. Mr Proud provides peer support to these inmates and helps me present the course. He then gives ongoing support in the wing when they have problems and helps to relieve the fears that they may have."
These matters were acknowledged by his Honour in the applicant's favour. His Honour did take into account the utilitarian value of the applicant's guilty plea. 16 The power conferred on this Court to grant or refuse leave to appeal is contained within s5 of the Criminal Appeal Act 1912, which sets out the powers of the Court but not the ground upon which this Court can set aside a sentence. 17 The manner in which an appeal against the exercise of judicial discretion is to be determined is governed by the principles in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. The position was further considered in R v Simpson (2000) NSWCCA 534 by Spigelman CL, with whom Mason P, Grove, Sully and Newman JJ agreed. "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'if it is of the opinion that error has occurred in the sentencing process.' That is not the statutory formulation. By section 6(3) this Court must form a positive opinion that 'some other sentence ... is warranted in law and should have been passed.' Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in section 6(3) further requires the identification of error in the requisite sense." 18 It was firstly submitted by the applicant that the sentence was manifestly excessive and it was submitted that the applicant has come from a troubled background and genuinely attempted to rehabilitate himself in terms of his drug use. He pleaded guilty at the earliest possible time and in applying R v Thompson and Houlten (2000) 49 NSWLR 383 with a notional discount of twenty-five per cent, that would mean, it was submitted, the applicant's starting point for his sentence was for a term of eight years. It is submitted that was excessive in the circumstances of this case. 19 The Crown submitted that whilst the Learned Sentencing Judge did not place the applicant's crime at the top of the scale, he certainly considered it particularly serious and well up the scale of seriousness. It was submitted that the objective seriousness of the crime was enhanced by many of the factors which were identified in R v Ponfield (1999) 48 NSWLR 327 by Grove J, with whom Spigelman CJ and Sully J agreed. Grove J said at paras 48 to 49: "A court should regard the seriousness of an offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of the sentence if any of the following factors are present. Necessarily, if more than one such factor is present, there is a cumulative effect upon seriousness and the need for appropriate reflection: (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record, particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offences (reflected either in the charges or matters taken into account on a Form I pursuant to s21 of the Crimes Sentencing & Procedure Act 1999 on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s 105A(1)(f)) it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victims (other than as a result of corporal violence, infliction of actual bodily harm or liberty defined circumstances of aggravation: Crimes Act s105A(1)(c) (d) and (e). 20 It will of course be requisite for a sentencing Court to give appropriate weight to matters in mitigation as manifested in the particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider, it is not, of itself, a mitigating factor. (see R v Henry 46 NSWLR 346 at paras 193-203 and 217-259)" 21 The Crown submitted that five of these factors were present in relation to the indictable offence and the four offences on the Form I and while I acknowledge some of these factors were present, it must be noted that the Court must take into account the subjective and objective features of the crime which indicate there has been a genuine attempt to rehabilitate and a clear showing of remorse. 22 More recently in R v Sharma (2002) NSWCCA 142, Spigelman CJ, with whom the other four members of the Court agreed, held: "The sentencing judge did not err in taking into account the utilitarian value of the plea in accordance with R v Thompson . The subjective perspective of a 'willingness to facilitate the course of justice' referred to in Cameron v The Queen (2002) HCA 6; 76 ALJR 382 is not, in New South Wales, required to operate to the exclusion of objective considerations. Section 22 of the Crimes (Sentencing Procedure) Act 1999 has amended the common law in this respect." 23 His Honour, in sentencing, was looking at, not only a very serious offence but was also looking at four other offences on a Form I, which obliged the Sentencing Judge to look at the enlargement of the penalty to take those matters into account. The offence for which the applicant stood for sentence and one other matter at least were committed whilst he was on parole and I consider them as very serious matters. 24 It was submitted by the applicant, that he demonstrated a high level of remorse. The showing of remorse however, is not just simply about expressing regret but rather involves an offender co-operating with the authorities in explaining what happened to the funds and about other persons involved in the criminal activity, in which respect, the applicant did not give assistance to the police.
25 I agree that the eight years is presumably the notional starting point. It seems to me that in the circumstances of this case, with an applicant who has a serious criminal record which provides him no assistance, that his Honour had a correct starting point before taking into account appropriate discounts. 26 In relation to special circumstances, it is put that his Honour ought to have found special circumstances. This is a common misunderstanding of s 44 of the Crimes (Sentencing Procedure) Act 1999. Section 44(1) of that Act requires the setting of a non-parole period as a term of the sentence and a non-parole period unfettered by anything other than principles of the common law. 27 Section 44(2) is a prohibition on making a non-parole period less than three-quarters of the term of the sentence unless there are special circumstances for it being less. The words "special circumstances" do not stand alone. They have to be the reasons found for it being less than three-quarters of the full term. 28 It was put on behalf of the applicant that the decision such as R v Brown (2000) NSWCCA 428, require a Sentencing Court to take into account, as a factor in rehabilitation the crushing effect of accumulating a total period where there have been short periods of freedom from custody, and to take that into account in accumulating this term and the previous terms. 29 R v Brown is a factor which a court may take into account and that position indicates that the Court should be enlivened to an approach to be taken in terms of rehabilitation, however, this Court should be very careful that it does not elevate to a principle of totality a factor which is merely one factor to be taken into account. 30 This was a sentencing on a single offence. It is, therefore, not an application of an accumulation. The four matters to be taken into account are to be applied in determining an appropriate sentence for that one offence. It is clear that His Honour looked very carefully at the record of the applicant, following which, and in determining an appropriate sentence, saw no reason, in terms of the applicant's failure to take up opportunities provided to him, other than to impose a sentence which was, in my view, appropriate in the circumstances. 31 I do not consider that there is an error as suggested by the applicant in the application of the principle of totality. His Honour clearly took into account that record as I have set out earlier in this judgment and I consider that, even though His Honour did make reference to a professional approach, that this was, perhaps, a slight elevation of his modus operandi in terms of the break and enters. 32 Nonetheless, I can see in terms of the factors which His Honour did have to take into account in applying Ponfield, the very serious nature of this offence and the lack of effective remorse, that the sentence was, in the circumstances proper, and I do not consider in any event, even if error had occurred, that any other sentence should have been imposed in terms of s 6(3) of the Criminal Appeal Act 1912, or whether some less severe sentence is warranted in law in terms of that subsection. 33 I would grant leave to the applicant to appeal and would dismiss the appeal. 34 SMART AJ: The particular offence of break, enter and steal with which the applicant was charged, is a serious one. It involved breaking into the unit of an elderly lady and stealing some $40,000, which she kept in tins in a bedside table. A further four counts of break, enter and steal had to be taken into account. Each of those offences was a serious one in itself. This meant that the sentence to be imposed on the count of break, enter and steal had to be increased and increased quite significantly. In all, some $82,000 was taken. 35 In the applicant's record of interview he claims to have no recollection of breaking into the victim's unit or of the theft of $40,000. It was the fingerprints, which he left in this unit, which ensured his plea of guilty and there were also fingerprints left in some of the other units into which he broke and entered. 36 The applicant has really made a number of distinct points. First, the applicant referred to the very bad background, which he had. In particular, reference was made to the bad influence of his father and the very disturbed home. It was submitted that the Judge erred in not appreciating the mitigatory effect of this background and simply treated it as a subjective feature. 37 Secondly, it was submitted that the Judge had erred when he describes the particular offence as evincing a type of professional operation. What appeared was that the applicant took the basic precaution of knocking on the door of the premises, which he wished to enter, to ensure that nobody was at home. He then used a rock or some other item to smash a window and enter the premises. Professionalism would normally involve something more than this. I think the Judge's description of what took place as a type of professional operation is marginally incorrect. However, it is plain, as the Judge held, that the applicant was getting around knowing exactly what he was doing, approaching premises and knocking on the door to ascertain if someone was at home. 38 I do not think that the slight misdescription of the operations is of any consequence, given that the Judge was plainly aware of what in fact had happened and concentrated on that. 39 Thirdly, it was submitted that the Judge erred in the non-parole period which he fixed. It was contended that the Judge should have had regard to the applicant's custodial history in the sense that he should have appreciated that out of a total of eighty-four months the applicant was going to spend seventy-five months in custody and that overall the sentences amounted to approximately one hundred and twelve months. 40 The applicant was out of gaol from April 2000 to January 2001. It was submitted that the Judge should have adopted the approach, which was taken in R v Brown (2000) NSWCCA 423. That is an approach, which requires considerable circumspection and is not necessarily one to be universally adopted. One has to be very careful that the result of such an approach does not culminate in inadequate sentences and non-parole periods, which do not adequately reflect the criminality with which the Court is faced. 41 The gravity of the offence in question, when allied with the offences taken into account leads to the conclusion that no lesser sentence was warranted in law. I, accordingly, agree with the orders proposed. 42 DOWD J: The orders of the Court will, therefore, be as proposed by me. oOo
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R
Jason PROUD
(1936) 55 CLR 499
(1998) 72 ALJR 1416
(1999) 48 NSWLR 327
(2000) 49 NSWLR 383
Leave to appeal granted; appeal dismissed. The six-year sentence and four-year-and-six-month non-parole period were not disturbed: [2], [33], [41]-[42].