R v Oliver

R v Sutton [2004] NSWCCA 225 R v Thomson & Houlton (2000) 49 NSWLR 383 CASES CITED: R v Astill (No 2) (1992) 64 A Crim R 289 R v Boulghourgian (2001) 125 A Crim R 540 R v Christopher Shaw (Bell DCJ 28.5.2004)

Ms J Girdham (Crown/Resp) COUNSEL: Ms A Francis (Appl)

S E O'Connor (Crown/Resp) SOLICITORS: S Kavanagh (Appl)

IN THE COURT OF CRIMINAL APPEAL 2004/2386 CCAP

SULLY J KIRBY J

Friday 4 February 2005 REGINA v Daryl Shane OLIVER Judgment 1 SULLY J: I agree with Kirby J. 2 KIRBY J: Daryl Shane Oliver (the applicant) filed a late Notice in which he seeks leave to appeal against the sentence imposed by Patten DCJ on 2 May 2003. Mr Oliver pleaded guilty to two counts, namely: Count 1: Break enter and steal from premises at Victory Parade, Truscott, in circumstances of aggravation, namely, that he was in company (s112(2) Crimes Act 1900) (maximum penalty: 20 years imprisonment). Count 2: Break enter and steal from premises at Neera Road, Umina (s112(1) Crimes Act 1900) (maximum penalty: 14 years imprisonment). 3 The applicant asked his Honour to take into account, when sentencing on the first count, a further five offences on a Form 1. The Form 1 offences were as follows (rearranged in chronological order to better understand the criminality involved): 1. 2 May 2002: Possess housebreaking implements (s114(1)(b) Crimes Act 1900) (punishable summarily by a maximum of 2 years imprisonment and/or a fine of $11,000, and on indictment, by 7 years imprisonment); 2. 3 June 2002 : Being found in premises with intent to commit an indictable offence (s546B Crimes Act 1900) (punishable by a maximum of 6 months imprisonment and/or a fine of $440); 3. 4 June 2002: Possess housebreaking implements; 4. 3 July 2002 (being the date of the arrest in respect of Count 1): Possess prohibited drug, cannabis (1.1 grams) (contrary to s10(1) Drug Misuse and Trafficking Act 1985) (maximum penalty 2 years imprisonment and/or a fine of $2,200); 5. 5 July 2002: Fail to appear upon bail undertaking (s51(1) Bail Act 1978) (maximum penalty imprisonment for 3 years and/or $3,300 fine). 4 Patten DCJ imposed the following sentence in respect of these offences: On Count 1 , taking account of the matters on the Form 1, imprisonment for 5 years from 15.8.02 to 14.8.07, with a non-parole period of 3 years from 15.8.02 to 14.8.05. On Count 2 , a fixed term of 3 years concurrent from 15.08.02 to 14.08.05. 5 Mr Oliver lodged a Notice of Intention to Apply for Leave to Appeal a short time after the sentence was imposed. The notice expired on 4 November 2003. A co-offender in respect of Count 1 was sentenced on 28 May 2004. On 15 September 2004 an application for leave was filed. When the appeal was argued, the Court granted an extension of time for the filing of the notice seeking leave to appeal. 6 A Notice of Appeal was filed raising a number of grounds of appeal. However, only one ground was pressed, namely: Ground 1: The sentencing Judge erred in the determination of the utilitarian value of the plea of guilty. 7 Before dealing with that ground, I should describe the circumstances in which the offences were committed. Count 1: Break enter and steal at Tascott. 8 His Honour's remarks on sentence do not make findings of fact in respect of either offence. However, the circumstances in which the offences were committed were not in doubt. The Crown tendered a short summary in respect of each count, and a number of statements. 9 In respect of Count 1, on 3 July 2002 the applicant met Christopher Shaw and a Ms Kolk at the Woy Woy railway station. They then drove in Ms Kolk's vehicle to a suburban home in Victory Parade, Tascott. The premises were then unoccupied. Watched by a neighbour, Mr Oliver and his companions entered the premises by means of breaking a window and removing a flyscreen. Thereafter they carried back and forth to the waiting vehicle a number of items including a television, a DVD player, a computer and printer. 10 The neighbour alerted the police. The Police came immediately. They intercepted the vehicle laden with the stolen goods. Each of the occupants, including Mr Oliver, was arrested. Mr Oliver was also found to have a small quantity of cannabis in his possession, which gave rise to one of the matters on the Form 1. When questioned by the police, he denied any wrongdoing. He told a fantastic story about having been picked up by the other two, not knowing what they were up to. He clearly thought better of that story and shortly after entered a plea of guilty. The property, apart from $150 in cash and a DVD player, was recovered.

Count 2: Break enter and steal at Umina. 11 The Statement of Facts, tendered before the sentencing Judge without objection, included the following description of the circumstances in which the offence giving rise to the second count was committed: "Between 4.40pm and 6pm on Sunday the 6th July, 2002, the Accused and an unknown Co-Accused have driven into Neera Road, Umina Breach in a blue Suzuki 4 Wheel drive registration number OZK.650. The Accused has borrowed this vehicle from the registered owner. The Accused and his Co-Accused have gone to the rear back glass window of 85 Neera Road, Umina where they have smashed the window. The Accused and Co-Accused have then entered the premises via this smashed glass window and proceeded to steal one Beam Pentium II computer hard drive tower, a Diamond View Computer monitor, set of Encore Speakers, a Logitech computer mouse and keyboard, one Nokia 51101 mobile phone, Samsung DVD player, forty five DVD movies and one double bed doona cover to the value of approximately $4,000. The Accused and Co-Accused have then left the location after (being) startled by a neighbour." 12 A statement in those terms would support the more serious offence of break enter and steal in circumstances of aggravation, namely, being in company (s112(2)). However, the charge against Mr Oliver was brought under s112(1) and the matter should be approached upon that basis. The computer, but not all the attachments, was recovered. The value of the property not recovered was estimated to be approximately $3,000. 13 Both offences were committed whilst the applicant was on bail, which the learned sentencing Judge recognised was a matter of serious aggravation.

The subjective circumstances of Mr Oliver. 14 The applicant was born on 3 June 1973. He is aged 31 years. His parents separated when he was a baby. However, his mother married again. He formed a close relationship with his stepfather, who died when he was 13. He told the Probation and Parole Service that he got on well with his mother and that he was well cared for throughout his childhood. 15 After a basic eduction Mr Oliver began work as a bricklayer's labourer. In his early years he abused alcohol and drugs. One gathers, nonetheless, that he managed to remain in work and out of trouble. He had one minor criminal conviction in 1992 in respect of which he received a small fine. 16 Unfortunately, at the age of 24 years, the applicant became addicted to heroin. He rapidly accumulated a significant criminal record, mainly for offences of dishonesty. In 1997 he was charged with stealing, receiving, and the possession of a prohibited drug. He was ordered to serve 200 hours community service. He was also required to enter a recognisance. A year later he was charged with larceny. Again he was dealt with leniently. An order was made for home detention for a period of 6 months. 17 Within a matter of days, he again offended. The order was ultimately revoked by the Parole Board and Mr Oliver was required to serve all but a week of the 6 months fixed in the original order. At the same time he was charged with a further series of offences, including 4 counts of break enter and steal, two counts of larceny, receiving and obtaining money by deception. A term of imprisonment of 2 years, with a minimum term of 18 months was imposed in respect of the more serious of these offences. Lesser concurrent terms were imposed in respect of the remaining offences. 18 Shortly after Mr Oliver was released he again offended. On 10 July 2000 he was sentenced for multiple offences of dishonesty (break enter and steal, goods in custody, obtaining benefits by deception and receiving). A term of 16 months imprisonment was imposed with a non parole period of 12 months. 19 Mr Oliver gave evidence on sentence. In substance, he suggested that he was at the cross roads. He said that he had had enough. He recognised the need to address his heroin addiction. He had recently formed a relationship with a woman who was assisting him in giving up drugs. He had been in custody since his arrest on 15 August 2002. He had remained "clean", that is, drug free, since that time. He had undertaken a number of courses in gaol. He expressed contrition. 20 Mr Oliver's mother provided a brief statement. She described the applicant's fiancée as "the best thing to happen to him in a long time, as she is really good for him". 21 Mr Oliver, in his evidence, suggested that the relationship was of three months duration. His fiancée, in a separate statement, gave a somewhat different timetable. She said this: "Daryl and I met five years ago through mutual friends. We have been going out for one and a half years. Eight months ago Daryl asked me to marry him and I accepted." 22 When speaking of three months, Mr Oliver may have been referring to the time that he and his fiancée had been living together before his arrest. Plainly his offending conduct occurred during the currency of their relationship. The relationship, although important to his rehabilitation, cannot be regarded as the complete answer to his drug problem. The answer must come from within him. 23 His Honour, nonetheless, found special circumstances, believing it to be important to the applicant's rehabilitation that he should have the benefit of a longer than usual period of supervision. 24 Against this background, I now turn to the complaint made against the sentence.

Ground 1: Discount for plea of guilty. 25 The remarks on sentence by his Honour included the following statement: (ROS 3) "The prisoner is, of course, entitled to have the benefit of his pleas of guilty taken into account. They were of utilitarian value to the State, although, as it appears, the case against him was strong, he having been observed in the course of both matters for which he is before me." 26 That statement is said to reveal error for a number of reasons. First, it suggested, as the Crown acknowledged, that his Honour discounted the utilitarian benefit arising from the plea of guilty by reason of the strength of the Crown case. There should be no such discounting. Howie J, in R v Sutton [2004] NSWCCA 225 expressed the principle in these terms: (at para 12) "This Court has pointed out, time and time again, that the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty. The strength of the Crown case is relevant only to the evaluation of remorse and what weight should be given to that factor in determining the appropriate sentence." 27 His Honour added: (at para 14) "Judges of the District Court must surely be aware by now that to suggest, as his Honour clearly did, that the utilitarian value of the plea has been reduced by the strength of the Crown case, is an error which might warrant the intervention of this Court." 28 Secondly, his Honour, according to the applicant, neither identified the discount he applied, nor the factors which he took into account (apart from the irrelevant factor, the strength of the Crown case). He was obliged to do one or other. Again the principle was expressed by Howie J in the same case in the following passage: (at para 12) "... if judges are not prepared to make the discount clear by quantifying it or indicating the starting point of the sentence before the application of the discount, then with respect, they should carefully and correctly enunciate the factors taken into account and the principles being applied in determining the discount which they are applying. As Dunford J noted in R v Mako [2004] NSWCCA 90 at [21]: 'In all cases the important consideration is to expose the transparency of the process so that it can be seen that an appropriate discount has been allowed.'" 29 The Crown responded by pointing out that his Honour was not obliged to quantify the discount. Although he did not refer to the matters he took into account in his discussion of the plea of guilty (apart from the irrelevant matter), he began his remarks on sentence with these words: "The prisoner pleaded guilty before a Magistrate on 10 October last year ..." 30 His Honour, according to the Crown, was plainly conscious of the timing of the plea and its importance in determining of the size of the discount. 31 The applicant, by way of rejoinder, submitted that his Honour made no reference to the complexity of the matter, that being a further aspect identified in R v Thomson & Houlton (2000) 49 NSWLR 383 at 418. Whilst neither Count 1 nor Count 2 could be considered complex, and would not have taken a great deal of Court time, the combination of those charges and the five separate matters included on the Form 1 did have significant utilitarian value. 32 There is substance in each of the criticisms made by the applicant. I believe there was error. The reference to the strength of the Crown case, in the context of a discussion of the worth of a plea of guilty, inevitably gave rise to an impression that his Honour discounted the value of that plea by reason of that fact. 33 The Crown, anticipating that finding, submitted, however, that no lesser sentence was warranted in law (s6(3) Criminal Appeal Act 1912) (R v Astill (No 2) (1992) 64 A Crim R 289 at 303 and 304; R v Boulghourgian (2001) 125 A Crim R 540 at para 34). The Crown pointed to the following: · The offences were committed whilst the applicant was on conditional liberty on bail (in relation to the offences on the Form 1); · Not all the property was recovered; · The applicant has previous convictions of the same type, for which he received custodial sentences; · The applicant was not young; · There were multiple offences, including offences on a Form 1. 34 Should the Court intervene? Where an error is shown, and where it can be inferred that the sentencing Judge would have given a lesser sentence, but for the error, ordinarily one would expect this Court to intervene unless to do so would reduce the sentence to a level which was less than adequate. 35 Here it was suggested by the applicant that, assuming his Honour had applied a discount of approximately 10 percent for the plea of guilty, and that it would have been reasonable for him to have allowed 25 percent, then the head sentence would have been reduced by approximately 6 months (to 4 years 6 months rather than 5 years). The non parole period would have been adjusted accordingly (and probably rounded off from 3 years to 2 years 6 months, reflecting the finding of special circumstances). 36 Two issues arise. First, is it reasonable to assume a discount of 25 percent for the plea of guilty? Secondly, is the sentence, adjusted in the way suggested, or approximately in that way, inadequate having regard to the personal circumstances of Mr Oliver and the criminality involved? The Crown submitted that the sentence, so adjusted, would be inadequate, pointing mainly to the length of the non-parole period which would then be too low. The applicant submitted that such a sentence would be well within the range. The length of the non-parole period was the consequence of the finding of special circumstances. No challenge had been made to that finding. The applicant further submitted that it was reasonable to adopt a 25 percent discount. The offences had been committed on 3 and 6 July 2002. The plea was entered in the Local Court on 10 October 2002. It was therefore a very early plea. Mr Oliver's companion in Count 1, also pleaded guilty. He was given a discount of 25 percent for that plea by Bell DCJ on 28 May 2004 (R v Christopher Shaw) 37 I have come to the view that the Court should intervene. I accept that, but for the error, his Honour would have imposed a lesser sentence along the lines suggested by the applicant and that such a sentence would have been within the range of sound sentencing discretion and therefore unlikely to have attracted a successful Crown appeal. In these circumstances I believe it is just for the Court to intervene and resentence the applicant in terms which correct the demonstrated error. 38 In re-sentencing, I believe a discount of 25 percent for the plea of guilty is reasonable. I would, for the same reasons as provided by the sentencing Judge, find special circumstances.

1. That the time for filing the Notice Seeking Leave to Appeal be extended.

3. That the appeal be allowed and that the sentence imposed on 3 May 2003 in respect of Count 1 be quashed, the sentence on Count 2 being confirmed.

4. That in lieu of the sentence in respect of Count 1, and taking into account the matters on the Form 1, the applicant be sentenced to a term of imprisonment of 4 years 6 months commencing on 15 August 2002 and expiring on 14 February 2007, with a non parole period of 2 years 6 months commencing on 15 August 2002 and expiring on 14 February 2005, at which time the applicant will be eligible for release on parole. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.