REGINA v Bevan John ARGENT [2004] NSWCCA 270 | Case summary

Judgment 1 JAMES J: I will call upon Bell J to give the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant by his Honour Judge Twigg (the Judge) on 12 September 2003. The applicant was sentenced on eight counts of breaking, entering and stealing and one count of breaking and entering with intent to steal. The Judge was asked to take three further offences into account pursuant to s 33 of the Criminal Procedure Act 1986. These comprised one charge of breaking, entering and stealing, one of possession of housebreaking implements and one of the possession of a pair of scissors (being an offence under the Summary Offences Act 1988). 3 The applicant pleaded guilty to each of the offences. They fell into two groups. The first group, Group A, were committed between 29 March and 18 April 2002. Each was an offence of breaking, entering and stealing contrary to s 112 of the Crimes Act 1900. The applicant was arrested in relation to these offences on 18 April 2002. He was remanded in custody until his release on bail on 20 May 2002. 4 On 24 May 2002, three days after his release on bail, the applicant was arrested on a number of warrants. He was subsequently dealt with before the Central Local Court on charges that included the possession of implements to enter and/or drive a conveyance, larceny, malicious damage to property, and goods in custody. He was sentenced to an effective term of five months' imprisonment to date from 24 May 2002. This sentence expired on 23 October 2002. 5 On 11 October 2002 the applicant pleaded guilty on indictment to the five Group A offences. The Judge adjourned the sentence hearing under the provisions of s 11 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) to 10 October 2003. A term of the bail granted to the applicant was that he enter "The Glen" drug and alcohol rehabilitation centre. The applicant did not comply with this condition of his bail. 6 The applicant was arrested on 29 November 2002. He had broken and entered a shop with intent to steal. At the time of his arrest he was in possession of the housebreaking implements and the scissors that are the subject of two of the offences contained in the Form 1 document. He was charged in relation to these matters and with four offences of breaking, entering and stealing. It is convenient to refer to these offences collectively as the "Group B offences". The four breaking, entering and stealing offences which form part of the Group B offences were committed between 11 February and 16 April 2002 and thus cover, broadly, the same period as the Group A offences. Physical evidence at the scene of each of these offences linked the applicant to their commission. 7 The Judge dealt with the four Group B offences by imposing concurrent fixed term sentences of 12 months' imprisonment to date from 29 November 2002. He took into account the three Form 1 offences in relation to an offence of breaking, entering and stealing that was committed on 3 March 2002. 8 The Judge dealt with the five Group A offences by imposing concurrent sentences of four years and six months' imprisonment. These sentences were accumulated on those imposed for the Group B offences. Each sentence for the Group A offences was expressed to commence on 29 November 2003 and to expire on 28 May 2008. A non-parole period of three years, commencing on 29 November 2003 and expiring on 28 November 2006 was specified for each of the sentences. 9 The applicant challenges the sentences on two grounds: The Judge failed to give the applicant the benefit of the 33 days spent in custody between his arrest on 18 April and his release on bail on 20 May 2002; The Judge failed to give effect to his finding of special circumstances in the specification of the non-parole period with respect to the Group A sentences. 10 I will refer to the facts upon which the Judge sentenced the applicant for the five Group A offences by reference to the statement of facts: "(i) On 29 March 2002 the applicant unzipped a plastic tarpaulin secured to the structure of an outdoor patio and entered a restaurant in Kings Cross, stealing $500 from the cash register. He removed a small floor safe that had been bolted to the kitchen floor. It contained $300 cash and a number of locker keys. He moved a number of bottles of alcohol from a bench to the floor of the premises. They were left there. The applicant's fingerprint was found on one of them. (ii) On 31 March 2002 the applicant smashed a window of the Maclay Street Cellars, Potts Point. He stole a number of bottles of alcohol which he placed in two carry-bags. He was seen by two men as he left the premises. They gave chase. He put down the bags saying words to the effect, "I just saw the bags there, I just picked them up. You're not going to pin this one on me". He ran off leaving the bottles near the scene. His fingerprint was located on one of the bottles. (iii) On 10 April 2002 the applicant broke into a clothing store in the Wynyard Arcade by removing a perspex roller shutter from its tracks. He stole $500 from the cash register. His fingerprint was found on the base of the cash register. (iv) On 11 April 2002 the applicant broke a window and entered a restaurant in Maclay Street, Potts Point. He stole $2,000, together with a number of bottles of alcohol, a laptop computer and a black leather jacket. His fingerprint was located on a bottle that was left at the scene. (v) On 18 April 2002 the applicant broke into a toyshop in the Mid-City Centre. He stole the sum of $531 from a cash register. He was seen leaving the premises by a security guard who gave chase and apprehended him." 11 The applicant adhered to pleas of guilty entered in the Local Court with respect to the four Group B offences. The facts concerning these offences were set out in the judgment: (i) On 12 February 2002 the applicant broke into the East Sydney Loan Office in Darlinghurst and stole a quantity of property, including a video camera, of a total value of $1,150. (ii) On 2 March 2002 the applicant broke and entered the premises of H & M Beauty, a shop in Kings Cross and stole $150. (iii) On 28 March 2002 the applicant broke and entered the premises of Sprint Copy Digital in Darlinghurst and stole the sum of $1,000. (iv) On 29 November 2002 the applicant broke and entered a newsagency in William Street, Darlinghurst. The police attended at the scene and arrested him. He had a screwdriver and a pair of scissors in his possession. He was charged with breaking and entering with intent to steal. This offence was committed while the applicant was on bail in relation to the Group A offences. 12 The offence of breaking, entering and stealing that was recorded on the Form 1 was committed on 15 April 2002. The applicant broke and entered Photoland at 102 King Street where he stole property and cash to the value of $1000. DNA consistent with being that of the applicant was located at the site. 13 The Judge accepted that the applicant had entered pleas of guilty in relation to all of the offences at the earliest opportunity. He said that he would discount the sentences by 25 percent on this account. 14 The applicant's subjective circumstances were set out in a Probation and Parole report and in the report of Mr Milic, a clinical psychologist. 15 The applicant was aged 35 years at the time of sentence. He had a lengthy criminal history dating back to when he was aged 14 years. It included a conviction in March 1997 for armed robbery for which he had been sentenced to a term of four years' imprisonment. 16 The Judge noted that the applicant was one of six children. He had spent his childhood with his mother and a succession of violent stepfathers. Generally, home life had been characterised by economic uncertainty. In his early teenage years he had been made a ward of the Minister. He had experienced limited contact with his family as an adult. He did not meet his natural father until he was aged 25 years old. 17 The applicant was described as a socially isolated individual who had been involved in a number of relationships, which had not been lasting. He was the father of six children, one of whom had died of cancer. He did not have the support of any family members. 18 The applicant's level of intellectual functioning was assessed as being above average. In Mr Milic's opinion the applicant was capable of attaining academic qualifications well beyond his school certificate. His Honour accepted this opinion and noted the adverse affect that the applicant's unstable background and ill treatment by successive stepfathers had on his development. 19 The Judge found that the applicant's lifestyle had been dominated by his drug dependency. He had been abusing heroin, amphetamines and benzodiazepines since his teenage years. Apart from relatively short periods of unskilled employment, the applicant had been largely dependent on Centrelink benefits. 20 The Judge commented on the objective seriousness of the offences by reference to the substantial amount of money involved. In this respect his Honour referred to the judgment of this court in R v Ponfield (1999) 48 NSWLR 327 and to the matters to which s 21A of the Sentencing Procedure Act directs attention. 21 I turn to the first ground of challenge. The Judge said that he proposed to take into account the time that the applicant had spent in custody between 18 April and 20 May 2002. He referred to this consideration on two occasions (at ROS pp 8 and 16). The applicant complains that when one looks at the sentences imposed it is not clear that the Judge carried through his intention in this respect. 22 The sentences for the Group B offences were backdated so as to give the applicant credit for the time spent in custody from the date of his arrest on 29 November 2002. 23 The period of 33 days that the applicant spent in custody as a remand prisoner (referable to the Group A offences) is not evident when one looks at the terms of the sentences and at their dates of commencement. The starting point for the Group A offences was stated to be a term of six years. This does not readily evidence credit for the 33 days of pre-sentence custody. While the starting point for the sentences for the Group B offences was not stated in terms, there is nothing about the result; fixed terms in each case of 12 months, that suggests credit for the 33 days of pre-sentence custody. 24 In the Crown's submission the Judge did not err by his failure to structure the sentences so as to demonstrably reflect that the 33 days of pre-sentence custody had been taken into account. It was submitted to be sufficient that his Honour adverted to the matter in the course of his reasons. 25 When regard is paid to the date of commencement of each of the two sets of sentences and to the terms of the sentences in each group I am not persuaded by the Crown's submissions in this respect. I consider that the applicant has made good his first ground of challenge: see Wood CJ at CL in R v Howard [2001] NSWCCA 309 at [24] and [25]. 26 The second ground relates to the structure of the sentence. The Judge found with respect to the sentences for the Group A offences that there were special circumstances within the meaning of s 44(2) of the Sentencing Procedure Act that made it appropriate to depart from the statutory proportion between the non-parole period and the sentence. 27 The structure of the sentences is such that, in the aggregate, the term is one of five years and six months with a non-parole period of four years. The non-parole period represents approximately 73 percent of the overall sentence. 28 Although the sentences imposed for the Group A offences have a non-parole period that is less than three-quarters of the length of the sentence for the offence, the effect of accumulation of those sentences upon the sentences imposed for the Group B offences has to been to deprive the applicant of the benefit of the finding that his rehabilitation required that he have the opportunity of being at liberty under supervision for a period that exceeded one quarter of the overall sentence. 29 The applicant submits that the court should intervene in order to give effect to what is said to have been the Judge's stated intention. He relies on the decision of this court in R v LWP [2003] NSWCCA 215 per Spigelman CJ at [20]-[30]. 30 The Crown submitted that the Judge had reflected the finding of special circumstances in the sentences imposed for the Group A offences. Although it was proper for the Judge in imposing sentence to take account of the overall effect of the sentence, it was submitted that there was nothing to suggest that his Honour had failed to do so in this case. The Crown pointed to the way the Judge had approached the matter in his reasons for sentence: "I take into account the time spent in custody from 29 November 2002 and I take into account that the offender did spend time in custody in respect of the earlier matters from 28 May to 28 April 2003 (sic). I indicate that in order to recognise the special circumstances by varying the non-parole period I shall impose a fixed term on one bundle of offences and a sentence which has a non-parole period on the other. In respect of the offences that I shall refer to as being set out as Exhibit B, the s 51A matters, you are convicted. I take into account that you have been in custody since 29 November 2002. So, in respect of the three break, enters and steal and one attempt, you are convicted and sentenced to a term of imprisonment for one year to commence from 29 November 2002 and expire on 28 November 2003. I decline to set a non-parole period bearing in mind the sentence I impose on the other matters." (ROS 16-17) 31 In the Crown's submission it would appear that his Honour chose to fix a lesser non-parole period than the application of the statutory proportion would produce mindful that the sentences were to be accumulated on fixed terms of 12 months in each case. His Honour was said to have given consideration to the structure of the sentences for the two groups of offences and to have referred to special circumstances in this context. In the Crown's submission there was no reason to consider that his Honour was of the view that the applicant should have the opportunity of being at liberty under supervision for a period in excess of the 18 months that the sentencing order allowed. 32 A difficulty with the Crown's argument is that at the conclusion of his remarks on sentence the Judge identified the applicant's need for rehabilitation as the reason for finding special circumstances. If his Honour's finding of special circumstances had been made in order to accommodate the fact that the sentences were being accumulated on other sentences, the reference to the need for rehabilitation would have been superfluous. 33 In written submissions the Crown sought to meet both of the applicant's challenges by contending that in the event error was demonstrated, it was a case in which the applicant had received the benefit of notably lenient sentences and this Court would conclude that no lesser sentences were warranted in law: s 6(3) of the Criminal Appeal Act 1912. 34 In support of this submission the Crown pointed to a number of aspects of the structure of the sentences: (i) the sentences in each group were made wholly concurrent; (ii) the offence of 12 April 2002 involved the theft of property of substantial value and was said to have called for differentiation in the sentence imposed for it; (iii) the offence of 29 November 2002 was aggravated by the fact that it was committed while the applicant was at liberty on bail; (iv) the offence in respect of which the three Form 1 offences were taken into account was dealt with by a concurrent sentence of the same length as other sentences for the Group B offences. 35 Mr Dhanji, who appeared on behalf of the applicant, took us to a passage in his Honour's remarks on sentence: "I am looking at the totality of sentence to ensure that it is appropriate to the offence but not creating such a harsh burden, taking into account all the circumstances, that it would interfere with any hope that the offender might have" (ROS p.5)

REGINA v Bevan John ARGENT

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Judgment (13 paragraphs)

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