The Break Enter and Steal
17 Let me turn, then, to the circumstances giving rise to the charge of break and enter in circumstances of special aggravation. It is convenient to deal with the third count, steal a motor vehicle, at the same time. A truck, was stolen in the period coinciding with a break and enter (between 2 and 5 October). It was stolen, one assumes, in connection with the planned break and enter.
18 However that may be, the truck belonged to the Department of Education and Training. It was parked inside a college complex secured by gates. Two windows of a building within that complex were broken in the course of gaining access. The gates to the college were then damaged as the truck was driven out. The truck was also damaged. It was ultimately recovered. The repair of the truck cost $5,742, paid by the college's insurers, the Government Insurance Office.
19 The offence, the subject of the second count, was committed on 4 October 1999. A statement of facts was provided to the sentencing judge, together with a bundle of witness statements. Three offenders were involved, including Mr Shanks. All three attended the Westfield Shopping Centre at Parramatta. Their images were captured on video surveillance cameras in operation at the centre. Mr Shanks and one of his co-offenders broke into the Hound Dog clothing store. They attempted to open a safe, but were unsuccessful. Mr Shanks then left the store. According to the statement of facts, he asked his co-offenders to return to the store whilst he remained outside. The two co-accused went back to the store. They stole clothing valued at approximately $1,000 and cash amounting to $2,445. As the two co-accused left the store, they were seen by a security officer. He followed them. The security officer heard the sound of a click. He saw one of the offenders with a pistol. He heard another click. He mistakenly thought that the pistol was a toy gun. A telephone conversation, lawfully recorded under a warrant, suggested the gun belonged to Mr Shanks.
20 Another security officer became involved in the chase. A shot was fired. The security guard described having felt something "whiz past him". The two co-offenders ran from the shopping centre.
21 Yet another security guard joined in the pursuit. He saw the muzzle of a gun protruding from around a building. He heard a shot discharge. He was struck on the ankle. Fortunately the wound was superficial, damaging only the soft tissue of the ankle.
22 His Honour catalogued the matters which made the offence the more serious. It was committed in company. It was planned. The store was ransacked. Clothing and money were stolen. One member of the trio, although not the applicant, was armed with a pistol. Security guards were threatened, shot at, and, in one case, wounded. The offence occurred whilst Mr Shanks was on parole.
23 His Honour was asked to take account of a further offence of break and enter on a Form 1. The offence had been committed some time before. Mr Shanks acknowledged that on 11 November 1994 he had broken and entered the office of Norris Technology, stealing $200.
24 His Honour, in his remarks, gave consideration to the appropriate discount for the plea of guilty. The plea was entered on the day fixed for trial. On the other hand, the Crown case against Mr Shanks was described as "not particularly strong". His Honour determined that a discount of 20 per cent was appropriate. Making that discount, and taking account of Mr Shanks' subjective case, his Honour fixed 8 years imprisonment as the appropriate sentence, with a 4 year non-parole period. His Honour, as mentioned, partially accumulated that sentence with the sentence imposed for the armed robbery.
25 Mr Shanks identified in his submission a number of matters which made the sentence too severe. First, he believed that some of the clothing and money was recovered. Secondly, he did not take part in the shooting. He, in fact, left the scene, not waiting for his co-offenders. Thirdly, although he pleaded guilty on the day fixed for trial, his counsel had communicated to the Director of Public Prosecutions several days before that he intended to do so. He entered his plea once the DPP had indicated that it would not proceed with certain additional charges, including malicious wounding.
26 Fourthly, Mr Shanks again pointed to the statistics compiled by the Judicial Commission. In a sample of 23 cases, only 36 per cent attracted a sentence of 8 years. Having regard to his role, he suggested that the sentence was too harsh.
27 Let me deal with each of these arguments. In the context of this crime, the property which Mr Shanks and his companions managed to steal was not the most significant aspect. Clearly, they were, to some degree, thwarted, through being unable to open the safe. Assuming the recovery of some property, such recovery would not, in my view, have made a material difference to the sentence imposed.
28 Likewise, the communication of a few days before the trial of the applicant's intention to plead guilty, would not have made a difference to the discount appropriate for that plea. It may have been otherwise had the plea been entered at the stage of the committal proceedings.
29 In respect of the remaining issues, his Honour was well aware that it was the co-offenders, not the applicant, who fired the shots. In his remarks on sentence his Honour said this:
"I note that the prisoner was not the offender who was armed with a pistol, and that he was not physically present when one of the other two offenders, the one with the pistol, fired the pistol at Mr Rafter, wounding Mr Rafter."
30 The assertion by Mr Shanks, that having left the shopping centre, he got in his car and went home, is unsupported by evidence. Mr Shanks did not give evidence on sentence. The matter proceeded by way of agreed facts. His Honour described the circumstances in which the offence occurred as "not in dispute". The Statement of Facts included the following statement:
"Shanks then left the centre and requested his co-offenders to return to the store. Shanks remained outside the centre."
31 His Honour, appropriately, dealt with the matter upon that basis.
32 Finally, the statistics reflect the broad position I would have expected. Unquestionably, the offence was at the upper end of the scale. His Honour was also obliged to take account of the matter on the Form 1. I see no error in the sentence imposed.
33 Mr Shanks suggested that the sentence ultimately imposed should have been characterised as a spree and the sentence moderated on this account. The same gun was used in both offences. However, the sentences were separated in time. They were different in personnel, in target and in method. The proper approach was that taken by his Honour, that is, to assess each separately, as required by Pearce v The Queen (supra), and then to apply the principle of totality.