REGINA v BELL

COUNSEL : R D Ellis - Crown P J D Hamill - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant CATCHWORDS : ACTS CITED : Crimes Act 1900 Sentencing Act 1989 CASES CITED: R v Fernando [1992] 76 A Crim R 58 DECISION : Leave to appeal granted; Appeal allowed and sentence varied.; The applicant be sentenced to a total term of penal servitude for five years made up of a minimum term of two and a half years commencing on 21 February 1998 and expiring on 20 August 2000 and an additional term of two and a half years commencing on 21 August 2000 and expiring on 20 February 2003.

IN THE COURT OF CRIMINAL APPEAL 60423/98

SIMPSON J SMART AJ 27 October 1999 REGINA v TREVOR DEAN BELL JUNIOR JUDGMENT

SIMPSON J : 1 The applicant seeks leave to appeal a sentence imposed on him in the District Court by Nield DCJ following his plea of guilty to a single charge of aggravated break enter and steal. The charge was brought under section 112(2) of the Crimes Act 1900 and carries a maximum penalty of twenty years penal servitude. The sentence imposed by his Honour was one of a total term of penal servitude for six years. His Honour declined to find special circumstances within the meaning of section 5(3) of the Sentencing Act 1989 existed and divided the term conventionally into a minimum term of four-and-a-half years and an additional term of one-and-a-half years. 2 The offence was committed on 21 February 1998. The applicant smashed the bedroom window of a house and with his defacto wife entered the house and proceeded to collect a large amount of property. In smashing the window the applicant injured his hand and while the two were in the house he shed a good deal of blood throughout the house and on the property of the occupants. Having been notified of the entry, police arrived and encountered the two offenders in the premises. As a result no property was in fact removed from the premises but a great deal was damaged as a result of the blood shed by the applicant. The female occupant of the premises estimated the damaged property to be valued at about $3,000. The applicant and his defacto were arrested immediately. He declined to be interviewed by police. However, he subsequently entered a plea of guilty and the sentencing judge accepted that this was entered at the first available opportunity. 3 The applicant was born either on 31 August 1964 or 31 August 1965. The material is conflicting in this respect. He has an extremely lengthy criminal history. Judge Nield tallied the entries and concluded that he had been convicted of no less than seventy offences. Of these, nine were either of break enter steal or break and enter with intent to commit a felony. 4 The applicant is of Aboriginal descent and a pre-sentence report in evidence demonstrates that his history and background have many of the features and characteristics described by Wood J in Regina v Fernando [1992] 76 A Crim R 58. 5 He spent much time living in institutions from the age of seven or with relatives because of instability arising from his parents' alcohol abuse. Three siblings have died, at least one of them from a drug overdose. He has been addicted to heroin since early 1985 when he was about twenty years of age. In fact he first began using the drug at about fourteen years of age. He has attempted a methadone program but failed to complete it. At the time of the report in July 1998, he had again been admitted to a methadone program. He has used other drugs both legal and illegal and had become dependant upon prescribed barbiturates. 6 He has been in a defacto relationship with his co-offender since about 1991 and they have three children. A fourth child was still-born in December 1997 and this event appears to have caused a considerable breakdown in whatever stability he had acquired.

7 The applicant's aunt, Ms Maisie Kavanagh provided some information in writing for the sentencing judge. She said she had known the applicant all his life and watched him grow up. She confirmed the disruptive nature of his early life and the inability of his parents to establish any real relationship with the children. Six of the eight children of the family have drug dependency habits. Ms Kavanagh said, "In my experience as a woman, as a mother and now as a grandmother, I believe Trevor has the making of a father, who given the support could see his sons grow to be people any parent could be proud of. The problem lies I believe in the fact that Trevor has never received appropriate support and rehabilitation. He has never been counselled as a child dealing with his parents' alcoholism and domestic violence. He has never been counselled for being sexually abused. He has never been counselled for the death of his eldest brother and two sisters whom he shared a loving close relationship with. He has never been counselled for his own drug abuse and he has never been counselled for having had to live for so long within a dysfunctional family. So it is my belief that if Trevor was to be given the appropriate support to deal with his past and present life, Trevor can be the man he really wants to be, the husband or partner he really wants to be and the father he knows he can be. If Trevor Dean Bell is given the opportunity to seek the proper meaningful rehabilitation I can assure you I will support him all the way".

8 Three matters were argued on behalf of the applicant. The first concerned a comparison of the sentence imposed on him with that imposed on his co-offender and defacto. Ms Lee Marie Knock was sentenced to penal servitude for four years made up of a minimum term of two years and an additional term of two years. Obviously, in dividing the sentence as he did Judge Nield found that there were special circumstances in her case. 9 Judge Nield was conscious of issues of parity. He made specific reference to the question and to the matters differentiating the two offenders. The applicant is ten years older than Ms Knock. Although Ms Knock also had a significant criminal record numbering twenty-three offences, it was markedly less extensive than that of the applicant and it did not contain offences of equivalent seriousness. Further, there was material which could have suggested that Ms Knock had better prospects of rehabilitation although that difference seems to be somewhat limited. 10 On behalf of the applicant it was argued that these factors, the only ones mentioned by his Honour, are insufficient to justify a differential between the sentences of fifty percent if the starting point is the sentence imposed on Ms Knock. It was not argued and expressly disclaimed that parity required identical sentences. Mr Hamill who appeared for the applicant acknowledged the important distinctions that I have already mentioned. He urged however that a proper relationship was not maintained by his Honour and that in truth having found significant differences between the two his Honour discarded questions of parity. 11 It should also be noted in relation to the parity question that Ms Knock had a Form 1 offence to be taken into account; that being possession of cannabis. That, it was suggested would in a not insignificant way have a bearing on the relativities between the two sentences. 12 The Crown pointed to the objective circumstances of the offences, particularly that evidence which permitted the inference that it was the applicant who smashed the window and who did most of the damage within the house. It was argued that this meant that the applicant's role was greater than that of Ms Knock. His Honour did not specifically refer to this but it was clearly material that was before him. 13 I think it is probably correct that it was not within his Honour's discretion to impose sentences with the wide differential that he did. The result is particularly poignant when one looks not at the total terms of the sentences, but at the minimum terms imposed. The minimum terms ultimately imposed were of two years in Ms Knock's case and four-and-a-half years in the applicant's case. That effect resulted from his Honour finding that special circumstances existed in Ms Knock's case but not the applicant's, with the end result that the applicant's minimum term is more than double that imposed upon her. 14 On behalf of the Crown it was argued that the starting point is not the minimum terms imposed after the application of the finding of special circumstances and the consequent division of Ms Knock's sentence, but the sentence she would have served had no finding of special circumstances being made. 15 In my opinion that cannot be entirely accepted because it is well recognised that a justifiable sense of grievance might arise by reference to the actual time to be served by the two offenders. In any event the question of special circumstances in relation to the applicant has to be considered separately. 16 It is convenient now to turn to the third matter argued on behalf of the applicant. That was that no or insufficient attention was paid to the circumstances of his early life and his drug addiction. It was argued that at no stage did his Honour address the question of the impact the applicant's childhood might have had on his subsequent behaviour, particularly his drug addiction and his criminal activity. 17 A further matter that was argued in this context made reference to one particular passage from the remarks on sentence. That passage is as follows: "The prisoners are of Aboriginal descent. Like so many of Aboriginal descent each of them has a criminal record and I will return to their criminal records shortly. I do not doubt the difficulties that each of them experienced in their past. Regretfully the difficulties experienced by Aboriginal descent are well known. I do not doubt the problems that each of them has had with prohibited drugs".

18 It was suggested that the opening sentence of the passage was unfortunate and apt to give offence and irrelevant to the question of sentence and show that his Honour took into account irrelevant considerations and that the real question which remained unaddressed in the remarks on sentence was whether the applicant's drug and alcohol abuse was a reflection of his life experiences, his socio-economic circumstances and the environment in which he grew up and whether these were responsible for or contributed to the lifestyle which brought him before the court.

19 After reflection, it seems to me that the construction placed upon the opening sentences of the extract is a legitimate one, although I think it most likely that his Honour's intent in saying what he did was to allude to the Fernando principles. In particular the third sentence of the extract persuades me that that is probably so. However, when the words appear on the page they may well be misconstrued and they may well suggest that his Honour was taking into account circumstances unproven before him resulting from stereotyping of the Aboriginal community. As I say, I do not think this was his Honour's intent. 20 The real issue in this respect is whether proper appreciation has been taken of the applicant's history and background. Reference was made to the remarks on sentence of Wood J in Regina v Fernando. Whether adequate weight was given to this combination of circumstances can only be determined from an examination of the result. It may be observed that the combination of circumstances portrayed indeed a tragic history. 21 The total term of six years for a single offence of aggravated break enter and steal was a heavy one. The question is whether it was outside the limits of proper sentencing discretions. 22 Again, after consideration of all the relevant circumstances including the objective circumstances, the applicant's lengthy criminal history and the subjective features to which I have referred, I have come to the conclusion that that sentence was beyond the outer limits of a proper sentencing discretion. 23 In addition, it was argued that the refusal to find special circumstances constituted error. What his Honour said was "As to the prisoner Bell I cannot see any circumstance whatsoever which would warrant my variation of the statutory apportionment of the total term of six years into minimum and additional terms". 24 With respect to his Honour I am unable to accept that there were no circumstances which at least warranted consideration and on being given consideration pointed in my view inexorably to a finding of special circumstances. It is unnecessary to restate the extensive evidence of the applicant's background and the opinion expressed in the letter from his aunt particularly about the effect of the absence of counselling for his childhood experiences. Ms Kavanagh's opinion alone might properly be given little weight, despite the rational terms in which it is framed, because of her obvious interest in the case, were it not for the confirmatory nature of the pre-sentence report which one might expect to be somewhat objective in nature. This was, notwithstanding the applicant's lengthy record, a case in which my opinion called for a finding of special circumstances such that the applicant on his release will have the benefit of a lengthy period of liberty whilst under supervision. It is obvious that he will need a great deal of assistance on his release. I am satisfied that his Honour's discretion miscarried in this respect. 25 Accordingly, I propose the following orders: 1. Leave to appeal be granted. 2. The appeal allowed and the sentence varied. The applicant be sentenced to a total term of penal servitude for five years made up of a minimum term of two-and-a-half years commencing on 21 February 1998 and expiring on 20 August 2000 and an additional term of two-and-a-half years commencing on 21 August 2000 and expiring on 20 February 2003. SMART AJ: I agree. SIMPSON J: The orders of the court will be as I have proposed.

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