R v O'Connell

Crown: JA Girdham COUNSEL: Respondent: P Boulton SC

S Kavanagh (Solicitor for Public Prescutions) SOLICITORS: Wilson Fardell & Moore

IN THE COURT OF CRIMINAL APPEAL 2005/732

BROWNIE AJA BUDDIN J LATHAM J

Wednesday 3 August 2005 REGINA v Kevin John O'CONNELL Judgment 1 BROWNIE AJA: On 20 July 2005 the Court dismissed the Crown's appeal against sentence, saying that it would publish its reasons later. These are those reasons. 2 The respondent pleaded guilty in the Local Court to a number of charges, and adhered to those pleas in the District Court. There were nine charges of stealing from a dwelling (maximum penalty seven years imprisonment: Crimes Act 1900 s 148), eight charges of larceny (maximum penalty five years imprisonment: Crimes Act s 117), two charges of receiving stolen goods (maximum penalty ten years imprisonment: Crimes Act s 188), and one charge of possessing an unregistered firearm (maximum penalty two years imprisonment and/or a fine of $5,500: Firearms Act 1996 s 36). In addition there were taken into account six cases of being unlawfully in possession of property (maximum penalty six months imprisonment and/or a fine of $550: Crimes Act s 527C), and ten further cases of receiving stolen property, recorded on Forms 1. 3 His Honour Judge Finnane QC imposed these sentences: on one of the charges of stealing from a dwelling, a sentence of twenty three and a half months imprisonment, with a non-parole period of eighteen months, suspended pursuant to the provisions of the Crimes (Sentencing Procedure) Act 1999 s 12, on terms requiring the respondent to enter into a bond generally to be of good behaviour for the period of twenty three and a half months, and to require him to pay $16,000 to the Director of Public Prosecutions, by way of compensation; and on one of the charges of receiving stolen property, an identical sentence, to be served concurrently with the first sentence mentioned; in relation to the firearms offence, a bond to be of good behaviour for a period of twelve months, imposed under s 9 of the Crimes (Sentencing Procedure) Act; and in respect of the remaining charges a bond to be of good behaviour for the period of five years, imposed under s 9 of Crimes (Sentencing Procedure) Act. 4 The Director of Public Prosecutions did not appeal from the sentence regarding the firearms offence (which need not be mentioned again), but appealed from each of the other sentences, generally contending that the sentences imposed were manifestly inadequate, and taking these particular grounds of appeal:

1. The sentences imposed are manifestly inadequate because his Honour erred by tailoring the sentences so they could be suspended and good behaviour bonds imposed.

2. The sentences imposed are manifestly inadequate because his Honour erred by imposing concurrent sentences (relating to the suspending of sentences).

3. The sentences imposed are manifestly inadequate because his Honour erred by assuming the same degree of criminality and imposing the same sentences despite different types of offences and maximum penalties and a different criminality on the two Forms 1.

4. The sentences imposed are manifestly inadequate because his Honour failed to find that the respondent's breach of the victims' trust was an aggravating feature under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. 5 There was a statement of agreed facts tendered, pursuant to the Evidence Act 1995 s 191. This document was forty pages long, and accompanied by a two-page document recording claims made for compensation by various victims. I calculate the total amount so claimed to be $14,878.47. 6 Notwithstanding the criticism now levelled at the sentencing judge for not having gone into the details recorded in the statement of agreed facts, I think it is proper to summarise it quite shortly, adding a recital of other facts established in the District Court, and not now in contention. 7 The respondent lived in the Orange area for all his life, until 2003, when he moved to Queensland to live. After leaving school he went to work for the Orange City Council, where he was employed from 1963 to 1996, ultimately becoming the City Health Surveyor. In contentious circumstances he and some others were dismissed, a union took steps upon his behalf, and he was offered re-employment, but took a redundancy package instead. 8 He took other forms of part-time work, including work with the Cabonne Shire Council, which Council services the rural area around Orange. The course of that work required him to inspect many properties, spread over a wide area. Various householders admitted him to their properties and, to state things shortly, he stole many items of property from many different properties. It was his case, and the sentencing judge found that he was an obsessive man who for most of his life hoarded largely useless objects, and that is what he did with what he stole. With commendable thoroughness the police identified many of his victims, but a very large number of objects, apparently stolen, could not be linked to any identified victim, and these objects became the subjects of the charges of receiving stolen property, and of goods in custody. 9 Many of the things stolen were taken from places like toolsheds and farm outbuildings: electrical tools, tradesmen's tools, chain saws, pumps, gas bottles, drills, saws, air compressors, tool boxes, generators, a barbecue, a ladder and a welder, and many other things; farm equipment such as a cattle prodder, saddles, and sheep ear pliers; recreational equipment such as fishing rods, reels and a tackle box; cables; gardening equipment such as lawn and hedge trimmers, water sprinklers and garden tools; and household fittings such as door knobs, towel racks and taps. Other property stolen included entertainment items such as a DVD player, a stereo system and speakers, CD players, a camera, a TV set and a video recorder; bottles of alcohol; and a considerable amount of jewellery, stolen from bedrooms or elsewhere from within the houses of the victims. Some of the items of jewellery undoubtedly had sentimental value to the victims. 10 Mostly, the respondent gained access to the buildings in question because the victims permitted him to enter. On one occasion, entry was forced, by breaking glass in a door. The offences were committed over the period 7 February 2001 to 22 May 2003. There were so many offences committed, over so long a period, in the circumstances mentioned, where the respondent gained access to the properties of the victims, and gained knowledge about their contents by reason of his position as a council officer that, prima facie, nothing less than a custodial sentence could have been considered adequate. The substantial question is whether the sentencing judge erred in concluding that the mitigating circumstances were such as to justify the imposition of the sentences mentioned above. 11 The respondent had only one prior conviction, not suggested to be presently relevant: in 1978 he was convicted of driving with the prescribed concentration of alcohol, fined $150 and disqualified from driving for 48 hours. He was born in 1946, married in 1971, and had three adult children. He was in continuous employment from 1963 to 1996, and again from 1998 to 2003, when he retired. 12 He suffered for many years from a major depression, a condition which in his case appears to have been at least partly hereditary. He had been receiving medical treatment for this condition for a long time, not fixed with certainty, but dating from the 1980s, including psychiatric treatment since 1994. This condition was complicated by an alcohol overuse problem, and kleptomania (properly so-called), and the depressive state had been aggravated both by the circumstances of his dismissal, and by his having lost some $400,000 in consequence of a misguided investment, about 1988. At one stage his depression was so acute that he was bedridden. 13 The respondent, like his mother and his sister, hoarded things that were unlikely ever to be useful. His wife, whose affidavit evidence the judge evidently accepted, described him as having "almost a compulsion or an obsession to trawl second-hand shops, go to clearing sales or purchase useless things [which he] would then keep in his shed", and keep them for years. She described his obsessiveness and compulsiveness with an example: if he had nine shovels, he would not hesitate to buy another one if he thought it was a bargain. She also described in detail the progress of his depressive illness, and the symptoms he had exhibited. 14 In September 2002 she was diagnosed with breast cancer, and thereafter required radio- and chemo-therapy, in Sydney. Her illness had the effect of further aggravating his depression. Between them, they decided that he would retire, and that they would move to Queensland, to be near their daughters and some grandchildren. 15 When that decision was made, the respondent's wife insisted that he hold a garage sale, to sell some of the things then stored in the shed. On the occasion of that sale, a chain saw was sold, and a cousin of the buyer of that chain saw identified it as one that had been stolen from him. Police investigations followed, and a very large number of objects were found, either on the respondent's property, or concealed in long grass on a neighbouring property where he had previously worked, and to which he still had access. The police investigations led to claims for compensation made by or on behalf of seventeen different people, and to the identification of a total of 29 victims. However, there were very many things found, that the respondent had probably stolen, where no owner could be traced, and in respect of which the respondent could give no, or no adequate explanation. 16 The respondent said in evidence, and his Honour accepted, that he took the various items in consequence of his psychiatric state - his depression, coupled with his kleptomania. There was evidence describing what psychiatrists mean by that term, and the evidence concerning the respondent fitted him into the pattern so described. 17 The judge recorded his view that the things that the respondent had stolen were not things that he needed for himself, except in the limited sense that, as an obsessive hoarder, he thought he might need them one day. He made no attempt, until the occasion of the garage sale in 2003, to sell or otherwise dispose of them: he just hoarded them. He made no attempt to display the stolen jewellery. 18 His Honour reviewed the medical evidence, as well as the evidence of the appellant and his wife and his sister, and apparently accepted this evidence, concerning the extent and the progress of the respondent's illness; and he noted the respondent's evidence that he expected and deserved to be punished, that he was upset and disgusted about his own actions, and that he felt for the victims. His Honour also noted that the respondent had returned to his church, after the absence of thirty years, and how he was then engaged generally. At the time of sentencing, the respondent's wife had been tentatively diagnosed as suffering from a secondary pancreatic cancer. (The evidence on appeal confirmed that diagnosis. She is now terminally ill, and in great need of assistance, which he is providing.) His Honour also accepted the respondent's evidence that he would never offend again, and that, in the circumstances, he would have no opportunity to offend in the same way again. His Honour noted that the respondent had received extensive psychiatric treatment after the detection of his offences, including a period of ten weeks in hospital, and that that treatment appeared to have been quite successful, so far as it went; and there was a favourable Probation and Parole Report. 19 The judge then found that the whole series of offences (which he said, erroneously, had occurred over a period of twelve months or close to that, when in fact they occurred over a period of more than twenty seven months) should be regarded as being caused by deep psychiatric problems emanating from depression, in which kleptomania was involved, and that in no instance was the respondent motivated by a belief that he would materially benefit. 20 He spoke of the difficulty of assessing appropriate sentences: considered individually, the various offences were not in themselves particularly serious, but there were such a large number of them to consider - the judge referred to them collectively as constituting a "crime wave" - and the overall degree of criminality involved was so great that, even allowing for the respondent's mental illness, an overall penalty of three years imprisonment was appropriate. However, his Honour discounted this figure by 25 percent because the respondent had pleaded guilty at the first opportunity, and discounted it by a further 10 percent, which he described as "exceptional", to allow for the showing of contrition and remorse, not just by words, but by making restitution to the victims: he had paid $16,000 into his solicitors' trust account. 21 After arriving at the figure of twenty three and a half months (three years, less 35 percent) imprisonment, the judge then considered what form the imprisonment might take, and concluded that the only practicable form was by way of a suspended sentence. As he pointed out, that form of punishment had a practical effect for the period of twenty three and a half months, and the five year bond imposed in respect of the remaining offences also had an effect, although of course not so significant. 22 Although the appeal was supported upon the four grounds of appeal set out above, in substance it was argued on the basis that, viewing the matter overall, the sentences imposed were manifestly inadequate, and it is convenient to start by considering the matter in that way. 23 The Crown pointed to the respondent's evidence that he knew, at the times when he stole things, that what he was doing was wrong. A feature of his illness was that he did not steal things in the mornings, but only in the afternoons, to lift his mood, when he was tired. On the morning after the commission of an offence, he felt remorseful. Dr Westmore, a psychiatrist whose evidence his Honour accepted, described the respondent's conduct as having been a very sudden, unexpected and unpredictable way of acting, quite contrary to his general life history and his personality characteristics, and opined that the conduct had occurred in the context of the depressive illness rather than an obsessive compulsive disorder. The respondent's psychiatric health had improved quite significantly, with the treatment he had received between the time of the detection of the offences and the time of sentencing. 24 As the Crown submitted, there must be a reasonable proportionality between a sentence and the circumstances of a crime: R v Zamagias [2002] NSWCCA 17 at [9], where the authorities are collected; and a decision to suspend a term of imprisonment must be based upon a proper balancing between the objective circumstances of the crime and considerations that go to rehabilitation and mercy: Dinsdale v The Queen (2002) 202 CLR 321 at [86]. See also the Crimes (Sentencing Procedure) Act ss3A and 21A. However, I see no error in his Honour's approach, so far as regards these matters. 25 The appellant criticised the sentencing judge for not referring in more detail than he did to the statement of agreed facts. His Honour referred to that document briefly, and said that, for the purposes of his judgment, it could be regarded as being annexed to the transcript of his remarks on sentence. I see no error in this: it is a commonplace for judges, giving reasons for judgment orally, to refer to documents, or to specify parts of documents, not reading aloud those documents or those parts of those documents, but saying words to the general effect that the reporter should incorporate the passages referred to into the transcript of the judgment. It was not suggested that there was any difference in principle between an oral judgment, and remarks made on sentence.

Ground 1 - Tailoring the Sentence 26 The Crown pointed to the circumstance that the maximum period for a suspended sentence of imprisonment is two years: Crimes (Sentencing Procedure) Act s 12; and also to the fact that the term of a bond under s 9 may not exceed five years: s 9(2). It was then suggested that, contrary to well-established principle, his Honour erred by determining that the sentences should be suspended before determining the appropriate length of the sentences, thereby tailoring the sentences to meet the maximum penalty specified under s 12. 27 The submissions referred to one sentence in the remarks on sentence: "What you do ultimately depends on your assessment of the overall criminality, it seems to me." 28 As a matter of form, his Honour first fixed upon the period of three years imprisonment, then concluded that discounts totalling 35 percent should be applied, bringing the period of imprisonment down to (approximately) twenty three and a half months; and then he examined what form the imprisonment should take. I do not consider that one can detect from the transcript of his Honour's remarks on sentence any error in this process. 29 The Crown also referred to the decision in Pearce v The Queen (1998) 194 CLR 610, and submitted that the judge erred in that he did not, first, impose individual sentences for the individual offences. There is however a real difficulty in applying this proposition literally to the circumstances of this case. Given the background to the respondent and the circumstances of the various individual offences, it is difficult to say that any one of those individual offences called for a sentence of imprisonment, considered by itself, or in isolation. What made the case one where a sentence of imprisonment became appropriate was the overall criminality involved in the large number of offences committed.

Ground 2: Concurrent Sentences. 30 Reference was made to the decision in Pearce, and to the need to consider the issues of accumulation, concurrence and totality. The general principles are not in contention, but as I have already said, there is a practical problem that arises in the circumstances of this case, in that the many individual offences, if considered individually, do not warrant a prison sentence. It is permissible, in an appropriate case, to consider the various offences under consideration together, as a group, and to form a view about the extent of the criminality involved in all these offences: R v Hammoud [2004] NSWCCA 540, 118 A Crim R 66 at [8], R v Bahsa [2003] NSWCCA 36 at [91], and R v Scott [2005] NSWCCA 152 at [31] - [32]; and this was an appropriate case: there was one, long but essentially indivisible course of conduct, the product of the respondent's psychiatric state.

Ground 3: Different Degrees of Criminality 31 In the peculiar circumstances of this case, where the sentencing proceeded on the basis that the respondent had stolen all of the items of property under consideration, but where the charges were framed according to whether or not the victims of particular thefts could or could not be identified, there was no practical difference in criminality involved.

Ground 4: Abuse of a Position of Trust 32 The Crown submitted that the learned sentencing judge had erred in not treating what had happened as constituting an aggravating factor within the meaning of s 21A(2)(k) of the Crimes (Sentencing Procedure) Act: it said that the respondent had "abused a position of trust ….in relation to the victims". His Honour said: "I do not regard this as a breach of trust as such although I have got no doubt that the persons who owned the properties in a sense trusted him, although many of them did not actually know him. He is not to be equated with the role of a bank manager or a solicitor who has charge of funds". 33 I consider that his Honour was correct in coming to this view. See R v Stanbouli [2003] NSWCCA 315, 141 A Crim R 531 at [34] - [35]. 34 Even if this was wrong, the view that his Honour took, as a proposition of fact, appears to have been correct. He paid appropriate regard to the fact that the victims had, in a sense, trusted the respondent.

Conclusion 35 No appealable error has been shown. Indeed, in my judgment, the sentences imposed were proper ones. The appeal should be dismissed. 36 BUDDIN J: I agree with Brownie AJA. 37 LATHAM J: I agree with Brownie AJA

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