Regina v Baxter

Court of Criminal Appeal (NSW)|2005-06-28|Before: Grove J, Hoeben J, Hall J

Background to offences 6 His Honour dealt with the facts of the offences for which the applicant was sentenced at ROS 2-5. His Honour's review of the facts is accepted by the applicant. 7 On 13 August 2001 the applicant broke entered and stole from Vintage Cellars in Rushcutters Bay between the hours of 7 pm and 7 am. Entry was made through a smashed front store window and six cartons of various cigarettes to a total value of $400 were removed. 8 Between 7.15 pm 16 August 2001 and 6.30 am 17 August 2001 the applicant broke entered and stole from the Double Bay Camera Store. Entry was gained by smashing the rear entrance door. A display case was smashed with a rock and four computers were taken, together with five video cameras, to a total value of $18,400. 9 On 23 August 2001 the applicant broke entered and stole from Porters Liquor at Edgecliff at 5 am. The applicant and an unknown female gained entry to the shop by smashing the front glass door. A number of packets of cigarettes and an unknown quantity of wine were taken. 10 Between 13 and 14 October 2003 the applicant broke entered and stole from a house in Mount Pleasant Road, Mount Pleasant. Entry was gained by closed but unlocked rear window and the occupants were not disturbed. The applicant stole a laptop computer, $200 in cash, two mobile phones and car and house keys. He used the keys to steal a Holden motor vehicle which was located outside. This stealing offence was the first matter on the Form 1 document. The other Form 1 matters were also related to this incident. 11 On 15 October 2003 between 12 am and 5 am the applicant broke entered and stole from a residence in Cabbage Tree Lane, Fairy Meadow. The rear door had been left unlocked by the owner. The property stolen included a mobile phone, two sets of car keys, a camera, sunglasses, watch, wallets and various other personal items. 12 In relation to the aggravated break enter and steal, at about 2.15 am on 26 August 2002 the applicant gained access to a residence in Park Road, Bulli. The house was occupied by an elderly retired couple of whom the male was suffering from the effects of a stroke. When the applicant entered the bedroom, the victim fearing for her and her husband's safety, activated an alarm. The applicant ordered her to turn it off, lunged at her and knocked the alarm out of her hand. He then pushed her with an open hand, which spun her around. The applicant pulled a telephone cable out of the wall. He demanded money from the victim. She gave the applicant a handbag which contained her purse, $300, credit cards, driver's licence, car keys, cheque book, makeup and other personal items. The property was estimated at $1,300 in value. 13 The applicant was apprehended in relation to those matters on 21 October 2003 and has been in custody ever since. At the time of the offences of 13-14 October 2003 and 15 October 2003 the applicant was on conditional liberty in respect of a suspended sentence for other offences. 14 The applicant pleaded guilty to all of the offences, although as his Honour noted the plea in respect of aggravated break, enter and steal offence was somewhat "belated".

Subjective matters 15 The applicant was born on 15 April 1967 and is now thirty-eight years of age. 16 The report of Ms Kennedy, a psychologist, indicates that the applicant had been abusing cannabis from his late teens and had been using heroin and then cocaine from the age of twenty-seven. Nevertheless his first offence did not occur until June 1995 when he was fined for cultivating a prohibited plant and related drug matters. There were eight burglary and five theft offences in 1996 which were dealt with by way of a suspended sentence and a good behaviour bond. 17 Thereafter there was a gap until the year 2000 when the applicant was dealt with for drug matters, passing valueless cheques, malicious destroying of property, stalking, intimidation and offensive language. It is from that point in time that the number of his offences escalated with more serious offences, such as break enter and steal commencing in February 2002. 18 He was given various sentencing options, including fines and a bond, but his offending continued. He was given five weeks imprisonment from 23 October 2002. He came before the Wollongong Local Court on 7 January 2003 and was sentenced to 6 months imprisonment for break enter and stealing on 27 December 2003. During that period the applicant was also the subject of good behaviour bonds which were breached in respect of the break enter and steal offences of October 2003. Apart from the matters the subject of the present application, between 16 May 2002 and 25 June 2003 the applicant was convicted of one offence of larceny, five offences of break enter and steal and one offence of goods in custody. 19 The applicant's childhood was somewhat disturbed in that his parents' marriage broke up when he was young and he moved between Australia and New Zealand. He moved to Canberra in 1985 and met his wife one year later. They married in 1992 and remained together until 2000. They had two children. The relationship appears to have been somewhat volatile involving separations and substance abuse. It was the occasion of the applicant's break up with his wife in 2000 that seems to have been the trigger for significantly increased substance abuse, particularly methamphetamine and a significant increase in criminal activity to maintain his drug habit. 20 The applicant was an average student with some personality problems. He worked in a number of jobs after leaving school but none for any substantial period. He suffered a serious head injury in a car accident in 1986 as a result of which he was on a Disability Support pension for three years. He had a further serious head injury in 1999. There is no medical evidence before the court as to the precise nature of these head injuries, but on the applicant's evidence they were serious and may have involved some brain damage. 21 The applicant explained that since the break up of his marriage in 2000, his addiction to and consumption of illegal substances greatly increased, particularly cocaine. He had tried to overdose on heroin on occasions. His primary motive for his offences was to obtain money to buy drugs. After his motor accident in 1986 he found that cannabis relaxed him and enabled him to better function in society. 22 The applicant had attempted to rehabilitate himself from his drug dependency on one occasion, but this had been somewhat half-hearted and unsuccessful. The applicant told Ms Kennedy that he realised that his drug dependency was quite out of control and that he could not overcome it without help. He wanted to go into fulltime rehabilitation. It was the opinion of Ms Kennedy that his head injuries and possible brain damage, together with psychiatric difficulties resulting from his heavy substance abuse, his inability to cope with the breakdown of his relationship with his wife, lack of community support and lack of stable accommodation and employment had all contributed to these offences.

Remarks on sentence 23 His Honour said (ROS 11-12): "Looking at the matters that require consideration pursuant to s21A of the Crimes (Sentencing Procedure) Act , I remark first upon the aggravating factors. Paragraph (b), the offence, particularly the s112(2) offence involved the actual or threatened use of violence. It involves, as well, his having a record of previous convictions; and (e) some of the offences were committed in company. As regards loss or damage there was evidence that quite a lot of property had on occasions been stolen and the victims had not been compensated. There is also the emotional harm that would have resulted from that loss and particularly the emotional consequence of the offence pursuant to s112(2). In relation to the last two offences they were committed while the offender was on conditional liberty insofar as he was on a suspended sentence. In relation to (1) the victims were vulnerable having regard to their age and the circumstances in which he entered their home whilst they were asleep. As regards matter of mitigation there remains the prospect, at least, of some rehabilitation occurring. As well I accept that his remorse is quite genuine and he seems, away from drugs, to be a realistic sort of person. I also note that the Court should take into account whether he was not fully aware of the consequences of his or her actions because of his age or any disability and there remains the issue as to the effect of his head injury and the desirability of having neuro-psychological assessment. However, he did not wish to pursue that option. As regards (h) he pleaded guilty in relation to five of the charges and although he pleaded guilty to the charge on the indictment it was somewhat belated. Nevertheless I give him some credit for it bearing in mind that in the end result there was corroboration by way of fingerprint evidence which he accepted as involving himself. I also note that he otherwise made a number of admissions in the ERISP interviews and expressed some degree of remorse."

Grounds of appeal 1. The sentencing judge erred in determining the utilitarian value of the plea of guilty 24 The applicant submitted that although his Honour referred to giving some credit to the applicant for his plea of guilty, it was not clear how his Honour had treated the plea and whether he had in fact given any discount for it. It was not clear whether his Honour's reference to the strength of the Crown case related to the discount for the plea of guilty or whether his Honour had in mind the relevance of the strength of the Crown case when evaluating the extent of the applicant's remorse. Reliance was placed on to R v Sutton [2004] NSWCCA 225 at para [12] and at para [13]. 25 Although the matter is not entirely free of doubt, it seems to me from the overall effect of his Honour's judgment that he did have regard to the utilitarian value of the applicant's pleas of guilty when formulating his sentence. He did not fall into the error identified in R v Drew in that he did specifically refer to granting in favour of the applicant a credit for his early plea of guilty. In R v Drew there was not even a general comment to that effect. 26 Similarly, the context in which his Honour referred to the strength of the Crown case juxtaposed that matter with a consideration of the degree of remorse felt by the applicant. In those circumstances I am not persuaded that his Honour impermissibly had regard to the strength of the Crown case when assessing the extent of the discount to be made in favour of the applicant for his early pleas of guilty. 27 I am not persuaded that the first ground of appeal has been made out. It is unfortunate that his Honour was not more specific in setting out the detail of how he treated the applicant's pleas of guilty. This Court has on many occasions stressed the importance of transparency in the sentencing process. Nevertheless, his Honour's overall approach does not reveal error.

The sentencing judge erred in assessing the aggravating features of the offence 28 It was submitted on behalf of the applicant that his Honour did not recognise the limits upon the use that could be made of the aggravating factors referred to in s21A(1) of the Crimes (Sentencing Procedure) Act (the Act). Specifically his Honour did not have regard to the concluding words of the section: "The Court is not to have regard to any such aggravating factor in sentencing if it is an element of the offence."

It was submitted that his Honour did not have regard to s21A(4) of the Act which requires that a factor not be taken into account in a way inconsistent with general sentencing principles and the common law. 29 The applicant's submission focused upon his Honour's reference to the "use of actual violence" as an aggravating feature in the s112(2) offence and his Honour's reference to the fact that some of the s112(1) offences had been committed in company. To have regard to that latter factor was to commit the error identified in R v De Simoni (1981) 147 CLR 383. 30 Although this was not specifically raised on behalf of the applicant it seems to me that his Honour's use of the applicant's record of previous convictions as an aggravating factor also revealed error. 31 On its face subs 21A(2)(d) of the Act would indicate that a prior criminal record is a matter of aggravation by making the offence more serious. The common law rule, however, is that a prior criminal record does not have the effect of aggravating an offence but it may either deprive the offender of leniency or indicate that more weight is to be given to retribution, personal deterrence and the protection of the community. 32 It seems to me that the matters raised in ground of appeal number 2 do reveal error in his Honour's use of s21A of the Act.

Consideration 33 Error having been revealed, the question which arises is whether this Court should intervene. Section 6(3) of the Criminal Appeal Act requires the Court to form an opinion that some other sentence from that imposed should have been passed and, unless it forms that opinion, the appeal should be dismissed. 34 The matters for which the applicant came to be sentenced are matters of some seriousness. The five break, enter and steal offences were all committed on separate occasions and all involved separate victims. One of the offences involved goods of substantial value. Two of the offences were committed whilst the applicant was at conditional liberty. Those last two offences were also committed after the applicant had been released from periods of imprisonment. 35 In those circumstances one would have expected some partial accumulation of the sentences. His Honour's direction that all be served concurrently involved significant leniency for the benefit of the applicant. 36 The circumstances of the aggravated break, enter and steal offence with violence to an elderly victim objectively involved serious criminality. There were also aggravating factors. The victims were vulnerable because of their age (s21A(2)(l)). As his Honour found, emotional harm caused by the offence must have been substantial (s21A(2)(g)). The offence was committed at night at a time when it was likely that the premises would be occupied (R v Ponfield (1999) 48 NSWLR 327 para 48(i)). 37 Although it was not made clear by his Honour in relation to which offence the Form 1 matters would be taken into account, it was clear that the most serious of the offences was the aggravated break, enter and steal and that logically would be the offence in respect of which the Form 1 matters would be taken into account. 38 I am of course mindful of the subjective matters in the applicant's favour, particularly those referred to by Ms Kennedy in her report. Those matters, however, operate essentially as an explanation for the applicant's conduct not as an excuse. In any event, his Honour specifically referred to those matters and clearly had them in mind when formulating the sentence so that there was a substantial period of parole supervision built into it. 39 Although his Honour's use of the applicant's prior convictions involved error in the context of s21A(2) of the Act, it was a powerful factor to be considered when having regard to retribution, personal deterrence and the protection of the community. Given the number of offences and the applicant's recidivism, personal deterrence and the protection of the community are important considerations in this matter. 40 Taking those matters into consideration, and taking into account the principle of totality, I am not persuaded that some sentence other than that imposed should have been passed and accordingly I am of the opinion that the appeal should be dismissed. 41 The orders which I propose are:

(2) Appeal dismissed. 42 GROVE J: I agree. 43 HALL J: I agree. 44 GROVE J: The orders of the Court will be as proposed by Justice Hoeben. **********

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CITATION: Regina v Baxter [2005] NSWCCA 234

R v De Simoni (1981) 147 CLR 383 R v Drew [2005] NSWCCA 384 CASES CITED: R v Ponfield (1999) 48 NSWLR 327 R v Sutton [2004] NSWCCA 225

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