Regina v Christian Bernard Mougin

IN THE COURT OF CRIMINAL APPEAL 2005/39

GROVE J BARR J HOWIE J

Judgment 1 GROVE J: I agree with Barr J. 2 BARR J: This is an application for leave to appeal against sentences imposed in the District Court. On 16 February 2004 the applicant was called on for trial on four counts of aggravated breaking, entering and stealing and one count of breaking and entering with intent to steal. He pleaded guilty and asked for seven further offences to be taken into account, namely four charges of aggravated breaking, entering and stealing, one charge of breaking, entering and stealing and one of receiving and possessing house-breaking implements. The sentencing proceedings were adjourned. When they came on for hearing on 14 May 2004 a further plea of guilty was joined with the outstanding cases, namely a charge of aggravated breaking, entering and stealing to which the applicant had pleaded guilty in the Local Court and had been committed to the District Court for sentence. 3 Each offence attracted a maximum sentence of imprisonment for twenty years. 4 Judge Ainslie-Wallace sentenced the applicant on the first count to imprisonment for five years, commencing on 25 June 2003 and expiring on 24 June 2008, and fixed a non-parole period of three years, expiring on 24 June 2006. On each of the remaining counts in the indictment her Honour sentenced the applicant to imprisonment for a fixed term of three years, coinciding exactly with the non-parole period on the first count. For the count to which the applicant had pleaded guilty in the Local Court her Honour imposed a sentence of imprisonment for six years, commencing on 25 December 2003 and expiring on 24 December 2009 and fixed a non-parole period of four years, expiring on 24 December 2007. The total effective sentence was of six years and six months with a non-parole period of four years and six months. Her Honour found "special circumstances" to justify an adjustment of the prima facie relationship between parole and non-parole periods, constituted by the partial accumulation of the sentences and the applicant's prospects of rehabilitation. 5 The offences were described by her Honour in the following way - The offences on the indictment all relate to the offender with one or two others breaking into office buildings during the weekend and stealing laptop computers and other items. In all instances, the offender and co-offenders are captured at some stage by the security video cameras in the buildings. The woman seen by the video cameras was the de facto partner of the offender, Alicia Willoughby, who was the mother of their children. In some of the offences, the offender and Ms Willoughby were accompanied by her brother, Matthew Willoughby. In relation to the first charge on Saturday 25 January 2003, the offender with two others broke into offices in North Sydney by breaking a fire door. Once the building was entered they broke into an office by breaking a door and then punched a hole through an adjoining wall to allow entry into another office of National Credit. From the first office, five laptop computers were stolen and a printer. The first matter on the form 1 relates to the entry into National Credit on 25 January 2003 from which three laptop computers, cash and a mini computer were stolen. Charge 2 on the indictment relates to an offence committed on Sunday 9 February 2003. The offender with two people, one male and one female, were seen in the lift lobby of the same building in North Sydney as referred to in charge 1. Later it was found that a door to an office in that building had been smashed to allow entry and a laptop computer stolen. Matter 2 on the form 1 relates to an offence committed on 9 February 2003, another office in the same building being entered after the lock was forced, nothing was stolen from this office. Charge 3 on the indictment relates to an offence on 1 March 2003 when the offender with two other men entered a building in North Sydney. Entry to an office had been through a fire door which had been forced open, a filing cabinet opened and a laptop computer in the filing cabinet had been stolen. Shortly after the theft the offender was seen by police and identified because of a distinctive tracksuit worn by him and observed on one of the offenders captured on the video of a break enter and steal on 9 February. He was chased by the officers and when caught they found a backpack nearby containing the computer taken in the theft from the North Sydney office earlier that day. The offender was arrested and given bail. Matthew Willoughby was also arrested on that day and was refused bail. Matter 3 on the form 1 relates to possession of the laptop stolen on that day, 1 March 2003. Matter 7 on the form 1 relates to the possession of an implement of housebreaking found on the offender when he was arrested on 1 March. Matter 4 on the form 1 relates to an offence on 1 March 2003 when the offender entered an office suite in a building in North Sydney by breaking a glass panel. There was a hole made in that office which allowed access to the office next door, $180 cash was taken. Matter 5 relates to the same series of events and relates to the adjacent office into which the offender gained access through the hole in the wall he stole a laptop computer and cash of about $200. Matter 6 on the form 1 relates again to the same incidence but to the entry of an adjoining suite where a laptop was stolen. Charge 4 on the indictment relates to an offence committed on 2 March 2003 when the offender and Ms Willoughby were seen entering an office building in Parramatta and later seen leaving carrying bags. An employee of that office had been working on level 9 and had had access to the offices on level 7 which she locked after leaving them. A short time after they were locked she returned and found that they had been broken into and a hole had been smashed through an external wall to get into the offices. A lock on an interior door had been broken and six laptop computers taken. Charge 5 relates to an offence committed on 9 March 2003 when the offender and Ms Willoughby entered an office building in Sydney after the offender forced the front door. They were both observed to leave shortly afterwards and nothing was stolen. The charge brought to this Court for sentence from the Local Court (related) to an offence committed on 25 June 2003 when the offender and Ms Willoughby entered a building in Sydney and the offender removed a security pass from where they were stored after employees leaving the building for the evening had dropped the security passes off. The offender and Ms Willoughby returned that evening and using the security pass gained access to the offices there and took six laptop computers. The offender was arrested on 25 June 2003 and charged with that offence and was bailed refused and has been in custody since then. In all property to the value of $87,580 was stolen of which $38,700 worth was recovered. 6 The first ground of appeal complains that her Honour failed to allow a sufficient discount for the pleas of guilty, particularly for the count for which the applicant had pleaded guilty in the Local Court. 7 The applicant gave evidence on sentence. He was then almost twenty-eight years of age and had a substantial criminal history. He had been addicted to the use of illicit drugs for many years and had a serious criminal record, characterised by the frequent commission of property offences. Apart from simple drug offences, he had been dealt with for stealing motor vehicles, stealing from the person, assault, breaking and entering, breaking entering and stealing and kindred offences. He had a fairly typical pattern of an offender given many chances to rehabilitate, with recognisances giving way to fines, to community service orders, to periodic detention, to a short term of imprisonment and lastly to a term of imprisonment for three years beginning in June 2001. That last sentence was for aggravated breaking entering and stealing, and there was a non-parole period of fifteen months which expired on 13 September 2002. The applicant was on parole at the time of the offences in respect of which this application is brought. As well, those offences which he committed after 1 March 2003 were committed while he was on bail for the former offences. In a very real and legal sense, each succeeding offence was, all other things being equal, substantially more serious than any preceding offence. 8 The applicant told her Honour that he was sorry for his offences and expressed an intention to try to rehabilitate himself and, perhaps, take on a course of study. Her Honour considered that his expressions of remorse and contrition were genuine. 9 Dealing with the pleas of guilty her Honour stated - In relation to the charge brought to this Court from the Local Court committed in June 2003, the plea is regarded as being entered at the earliest opportunity. The pleas to the indictment were entered on the day of the trial. There is utility in the pleas on the indictment. The trial would have occupied some days and involved calling a number of witnesses, one of whom would have been Ms Willoughby who assisted the police by identifying the offender from the security video pictures at the various offices. This should be recognised by a discount from the sentence which would otherwise have been imposed, however, given the lateness of the plea the discount is to be 10 per cent. 10 It was submitted on appeal that her Honour failed to allow sufficient discount for the combination of the utilitarian value of the pleas of guilty, the willingness to facilitate the course of justice and the genuine expression of remorse made by the applicant. It was submitted that although a discount of ten per cent may have been within the proper range of her Honour's sentencing discretion as it related to the pleas entered on the first day of the trial, the finding of remorse should have produced a greater discount than ten per cent. 11 I do not accept the submission. The "willingness to facilitate the course of justice" here meant no more than the utilitarian value of the pleas. It implied that her Honour, by expressing the intention to discount the sentences by ten per cent, was saying that she did not intend otherwise to reduce the sentences to reflect other favourable features, particularly the finding about the genuineness of the applicant's remorse. I would not read such an intent into her Honour's words. Neither would I read into the judgment an intent only to allow a discount of ten per cent for the final charge, the one to which the applicant pleaded guilty in the Local Court. Although sentencing judges are encouraged to nominate the discount allowed for the utilitarian value of a plea of guilty - see R v Thompson and Houlton (2000) 49 NSWLR 383 - there is no obligation to do so, much less any obligation to quantify the discount allowed for other favourable features. 12 The submissions proceed on the erroneous basis that an expressed discount of ten per cent for one feature is some indicator of the total discount for all favourable features. Plainly, that is not so, and in my view the submission should be seen for what it is, a complaint that the sentence is too long and an attempt by a detailed analysis of the remarks on sentence to demonstrate that that is so. 13 In my view the first ground of appeal has not been made good. 14 The second ground of appeal complains that her Honour erred in her approach in her application of s54B Crimes (Sentencing Procedure) Act 1999. 15 The offences of aggravated breaking, entering and stealing came under the purview of s54B Crimes (Sentencing Procedure) Act and the relevant Schedule. The standard non-parole period is five years. Her Honour referred to the legislation and to R v Way [2004] NSWCCA 131, a judgment of this Court in which guidance was given about the operation of the standard non-parole period legislation. Her Honour concluded that, having regard to the circumstances of the offences and after taking into account the matters contained in s21A Crimes (Sentencing Procedure) Act the case did not fall within the middle range of objective seriousness and thus was not one which required the imposition of the standard non-parole period. Her Honour went on to observe, consistently with the judgment of this Court in R v Way, that the standard non-parole period can operate as a guide as to what extent the offender's criminality falls below the standard non-parole period. 16 It was submitted that her Honour failed to acknowledge the fact that a guilty plea itself is a reason to depart from the standard non-parole period: R v Way at para 68. Thus, it was submitted, her Honour fell into error. 17 The submission should be rejected. Her Honour could scarcely have forgotten that the applicant had pleaded guilty to all these offences. Moreover, her Honour expressly took into account the matters set forth in s21A Crimes (Sentencing Procedure) Act, one of which is that the offender has pleaded guilty: s21A (3)(k). 18 In my opinion this ground of appeal has not been made good. 19 The final ground of appeal is that the sentence is manifestly excessive and a less severe sentence is warranted in law. In addition to the complaints made under the first and second grounds of appeal it was submitted that the subjective circumstances of the applicant, sentences imposed on co-offenders and the partial accumulation of the final sentence upon the others combined to require a significantly lower total sentence than the one imposed. 20 In particular, it was submitted that in imposing sentence on the first count her Honour took into account seven further offences under the provisions of s32 Crimes (Sentencing Procedure) Act in arriving at a sentence of five years' imprisonment, whereas the final count, which was no different in character from the preceding counts and was dealt with on its own, attracted a longer sentence. Complaint was also made about the partial accumulation of the sentences. 21 Looking at the matter in that simple way, one might easily conclude that the sentence imposed on the final count was erroneously long, particularly in view of the early plea of guilty which had been entered on that count. However, it seems to me to be necessary to look at the totality of criminality and to the totality of the effective sentence imposed by her Honour. As I have already observed, her Honour was bound to regard the criminality on the final count as more serious than that on any previous count, not only because the applicant had renewed his dedication to offending but because he was on bail as well as on parole. By that time he had a more substantial criminal history, too. In my view those matters of themselves demanded a significantly higher sentence for the last count than the first, standing alone, would have attracted. 22 Another thing that needs to be said is that the accumulation by only six months was a substantial benefit to the applicant. If the sentence for the last count had been shorter, the period of accumulation would, in my view, have had to be greater. The sentences imposed by her Honour produced an overall term of six and one half years and a non-parole period of four and one half years. In my view that result reflected the objective criminality of the offences and made proper allowance for the subjective features. One might as easily argue that the sentence on the first count ought to have been longer, since it had to apprehend the seven additional offences. 23 Alicia Willoughby was sentenced for two counts of aggravated breaking, entering and stealing and one count of breaking and entering with intent to steal. Four additional matters were taken into account. The two charges of aggravated breaking, entering and stealing involved the applicant, but presumably the others did not. She pleaded guilty to all charges at the earliest opportunity. She assisted the authorities and undertook to give evidence against the applicant. She was not on parole at the time of her offences and only one of them was committed while she was on bail. The sentencing judge, who was not the judge appealed from, found that her role was subordinate to the applicant's. She was twenty-one years old at the time of her offences and twenty-two years old when sentenced. She had a fifteen week old baby. She had a criminal history and had served short periods of custody but had never before been convicted of breaking, entering and stealing. She was allowed seventy per cent discount for her favourable features. The result was a two year sentence, wholly suspended under the provisions of s12 Crimes (Sentencing procedure) Act. 24 Matthew Willoughby was convicted of two counts of aggravated breaking, entering and stealing. Six further offences were taken into account. He was sentenced to an effective head sentence of three years and six months with a non-parole period of one year and six months. He pleaded guilty at the earliest opportunity. He was on a bond and on bail when he committed the offences. He was twenty years of age when sentenced. 25 In my view the applicant has no justifiable sense of grievance by comparing his sentences with Alicia Willoughby's. She committed fewer offences. The mere fact that she was involved in only two of the applicant's offences and was his assistant in those is enough to dispose of the argument without any need to consider her superior subjective case. Her Honour took the view that the suspension of the sentence resulted in a sentence which so inadequately rejected the objective seriousness of Alicia Willoughby's criminality that it would have been erroneous to have regard to it. That was a view that her Honour was entitled to take. 26 In my view the lesser sentences imposed on Matthew Willoughby were well justified by his fewer offences, better record and younger age. I do not think that the applicant has any justifiable sense of grievance by comparing his and those sentences. 27 In my view this ground of appeal has not been made good. 28 In my opinion no lesser sentence was warranted in law. I would grant leave to appeal but would dismiss the appeal. 29 HOWIE J: I agree with Barr J. *************

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.