Regina v Lee William Barber

Court of Criminal Appeal (NSW)|2004-05-11|Before: Dunford J, Adams J, Howie J

CITATION : Regina v Lee William Barber [2004] NSWCCA 153 HEARING DATE(S) : 11 May 2004 JUDGMENT DATE : 7 June 2004

JUDGMENT OF : Dunford J at 1; Adams J at 23; Howie J at 24 DECISION : Leave to appeal granted - appeal allowed - applicant re-sentenced

CATCHWORDS : Criminal Law -Sentencing - assault police in execution of duty - break, enter and steal (x2) - matters on Form 1 - seriousness of offences - accumulation of sentences appropriate - overall sentences manifestly excessive Crimes Act 1900 ss 60(1), 112 LEGISLATION CITED : Criminal Procedure Act 1986 s 262 Pawnbrokers and Second-Hand Dealers Act 1996 s 24 Attorney General's Application [No 1] under s 26 of the Criminal Procedure Act, R v Ponfield [1999] NSWCCA 435, 48 NSWLR 327 CASES CITED : Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518, 56 NSWLR 146 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515 PARTIES : Regina v Lee William Barber FILE NUMBER(S) : CCA 60012/04 COUNSEL : B J Knox SC (Crown) H K Dhanji (Appellant) SOLICITORS : S Kavanagh (Crown) Legal Aid Commission (Appellant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/1150; 03/11/0106 FILE NUMBER(S) : LOWER COURT Urquhart DCJ JUDICIAL OFFICER :

7 - IN THE COURT OF CRIMINAL APPEAL 60012/04

DUNFORD J ADAMS J HOWIE J

MONDAY, 7 JUNE 2004 REGINA v LEE WILLIAM BARBER Judgment 1 DUNFORD J: This is an appeal against the sentences imposed by his Honour Judge Urquhart QC in the District Court of Sydney on 19 June 2003, following the applicant pleading guilty to one count of assault police whilst in the execution of his duty contrary to s 60(1) of the Crimes Act 1900 which carries a maximum penalty of five years imprisonment, and two counts of break, enter and steal contrary to s 112 of the Crimes Act which carries a maximum penalty of imprisonment for 14 years. 2 The facts in relation to the charge of assault police were that the applicant made a series of offensive comments towards police officers who were on patrol in Darlinghurst Road, Darlinghurst on 4 October 2001. The police were not wearing uniforms and told the applicant to move on. He then ran towards them with his right arm extended holding a silver object. The police identified themselves and used capsicum spray in the direction of the applicant, whereupon he turned and ran away. They chased him and after he was tackled and subdued, when again capsicum spray had to be used, the silver object was found to be a 26cm long screwdriver. The police were fearful for their safety. 3 Following his arrest, the applicant was released on bail but did not appear on 20 December 2001 in relation to that matter and a warrant was issued for his arrest, meanwhile, he remained at large. The first of the break, enter and steal offences was committed on 8 January 2002, when the applicant between 8:30am and 12:50pm, kicked in a rear door of premises, smashed a glass panel and entered premises at 30 Womerah Avenue, Darlinghurst and stole a computer, camera, money, a video player, a DVD player, a quantity of jewellery and other personal effects to a total value of $13,602. On the kitchen floor of the premises some drops of blood were located and a tissue with blood on it was also found inside the premises. A DNA analysis identified the blood as being that of the applicant. The applicant was arrested on other matters on 12 April 2002, and again admitted to bail on 20 May 2002. 4 Then on 11 July 2002 between 10am and 1:15pm, he broke into premises at 24 George Street, Paddington via a ground floor window. The glass window panel had been smashed and the window opened. Items stolen from those premises were a television set and a camera to the total value of $210. This matter was taken into account on a Form 1 pursuant to s 262 of the Criminal Procedure Act 1986 in relation to the sentencing for the break, enter and steal at Darlinghurst on 8 January 2001. 5 Finally, about 8:15am and 12 midday on 30 August 2002, the applicant went to premises in Brooke Street, Naremburn where he took a chisel from a shed located at the premises, which he then used to open a ground floor window at the rear of the house. He then entered the premises and stole an X-box games system, 3 X-box games and a large number of DVD's to the total value of $3000. 6 Later that day, he went to the premises of NN Cash Controllers in George Street, Sydney and sold one of the X-box systems and two hand controllers for an X-box system for $130 in cash. In doing so, he endorsed the relevant pledge with his signature claiming to be the lawful owner of the property. In respect of this he was charged with making a false statement to a pawnbroker contrary to s 24 Pawnbrokers and Second-Hand Dealers Act 1996. This matter was taken into account in considering the charge of break, enter and steal at Naremburn. 7 He was re-arrested pursuant to the warrant on 24 September 2003, and remained in custody since that date. 8 The sentences imposed were as follows:

i. On the charge of assault police officer: imprisonment for 18 months commencing 24 September 2002 and expiring 23 March 2004, with a non-parole period of 9 months expiring 23 June 2003.

ii. On the charge of break, enter and steal on 8 January 2002: imprisonment for 4 years and 6 months from 24 June 2003 to 23 December 2007, with a non-parole period of 2 years and 6 months expiring on 23 December 2005.

iii. On the charge of break, enter and steal on 13 August 2002: imprisonment for 4 years and 6 months to commence from 24 December 2004 and to expire 23 June 2009, with a non-parole period of 2 years and 6 months expiring on 23 June 2007.

The overall effective term was imprisonment for 6 years and 9 months with a non-parole period of 4 years and 9 months. 9 The applicant was born in New Zealand on 23 December 1967 and was aged 35 at the time of sentencing. He came to Australia with his family at the age of seven and the family settled in Maroubra. He did his School Certificate and spent approximately 4 years doing a carpentry joinery course, during which time he completed an apprenticeship. He then worked full time in different employments until about 1994 or 1995. He had an extensive criminal record going back to 1987 which included, on my calculation, 5 convictions for break, enter and steal or attempt the same, 17 convictions for stealing in various forms, 10 convictions for goods in custody and 3 convictions for assault and/or resist arrest. In addition, he had convictions for malicious damage, receiving, possessing housebreaking implements, possess prohibited drug and escape lawful custody. 10 In respect of all his previous offences he had been dealt with in the Local Court and had received recognisances, fines, community service orders and 8 discreet sentences of full time custody, the longest of which was for a term of 9 months minimum term with an additional term of 3 months. He was last released from custody on 30 July 2001 and the first of these offences was committed just over 2 months later on 4 October 2001, that is the assault police. All the offences except the assault police were committed whilst on bail or an absconder therefrom. 11 The applicant married when he was about 21 years of age and on that marriage there was one child, a daughter now 12-13 years old, but the marriage broke up and this was followed by custody hearings in relation to the child in the Family Court of Australia. He had a second relationship which lasted 3-4 years which produced a son but that relationship also broke down on account of his drug addiction. At the time of sentencing, he was in another relationship and his partner was pregnant, but had made it clear the relationship would not continue after his release from prison unless he ceased his drug use. 12 He began consuming alcohol at the age of 19 years but only drank socially until the court hearings began in regard to his daughter's custody at which stage he was drinking heavily for about 6 months, after which he ceased drinking and became addicted to drugs. He had commenced using cannabis at the age of 17 but stopped using it after about two years. When he stopped drinking alcohol, he began using cocaine and heroin and became addicted to those substances. 13 He has previously attempted rehabilitation pursuant to, or in accordance with, an order of a court and has been to Odyssey House, the Westside Mission and the William Booth Institute, but he said these attempts had not been successful because when he was released to those programs, he was on methadone in each case, and was unable to promote his own cause sufficiently to prevent him from returning to drugs. 14 But he also said that since being returned to custody in September 2002, he had not taken or used any illicit drugs although they were available to him, he was not on a methadone program and does not wish to be on such a program, and reference was made to his acceptance for a residential drug rehabilitation program at The Glen. 15 It was conceded by the Crown that the applicant had pleaded guilty to the various offences at the earliest opportunity, and his Honour accepted that the applicant was sincere in his expressions of contrition and remorse and, noted the applicant's wish and desire to be free and clean of drugs. He found that his motivation not to re-offend was both sincere and strong. 16 In the light of that evidence, his Honour accepted that this could be a turning point in his life notwithstanding his previous criminal antecedents. His Honour had regard to the fact that he was at that stage serving his sentence in what was described as "strict protection", his pleas of guilty, his sincerity and motivation, his desire for rehabilitation and the principles of totality, and allowed a discount of 25 percent for all aspects of the pleas of guilty on each charge and found special circumstances in the sincerity of his remorse and his motivation for rehabilitation. He then made his sentence for the first break and enter cumulative on the non-parole period for the assault police charge and the sentence for the second break and enter partially cumulative on the sentence for the first break and enter charge, with the results I have indicated above. 17 These were all serious offences. In Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515 at para [26] the Court said: "The authority of the police, in the performance of their duties, must be supported by the Courts.

In cases involving assaults against police, there is a need to give full weight to the objective of general deterrence and accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances are generally appropriate in such cases". In my view, the sentence of two years or the discount of 25 percent for the plea of guilty was not excessive. 18 As to the sentences for the break, enter and steal offences, I refer to the Attorney General's Application [No 1] under s 26 of the Criminal Procedure Act, R v Ponfield [1999] NSWCCA 435, 48 NSWLR 327, a guideline judgment in respect of this type of offence. At para [48], the Court drew attention to a number of features which aggravate the objective seriousness of such offences and need to be taken into account, some of which apply here including that the offences were committed whilst the offender was on bail (or an absconder therefrom), his prior record particularly for like offences, the offences were accompanied by significant damage to property, the multiplicity of offences and the value of the property stolen. In addition, there were the matters to be taken into account on the Forms 1: See Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518, 56 NSWLR 146 particularly at para [42]. In respect of these matters, his Honour took a starting point of 6 years for each charge which he reduced to 4 ½ years on account of the pleas of guilty and then made the sentences partly concurrent to each other, but wholly cumulative on the sentence for assault police to give effect to the principles of totality. 19 Having regard to the disparate nature of the offences and the need to protect the authority of the police, I can see no error in making the sentences for the break, enter and steal offences wholly cumulative on the non-parole period for the assault police. Furthermore, having regard to the fact that the two break, enter and steal offences with the third break, enter and steal offence on one of the Forms 1 relate to three totally separate instances of criminality, I can see no error in making them only partially concurrent with each other.

20 The applicant had an appalling record, but his Honour made favourable findings of a genuine desire to avoid drug use in the future and rehabilitating himself which his Honour, surprisingly in my view, considered has some prospects of success. However, when one looks at the total overall sentences of 6 years 9 months with a non-parole period of 4 years 9 months, I have come to the conclusion that in totality such sentences are manifestly excessive and that this Court should re-sentence the applicant. 21 In doing so, I would take into account the material disclosed in the affidavit of the applicant, which discloses that he is now on protection rather than strict protection and although there are apparently some limitations as a result of that classification, he is able to, and has completed courses within the gaol. I would not disturb his Honour's finding of special circumstances. 22 I would grant leave to appeal and allow the appeal. I would not disturb the sentence for the assault police but in respect of each of the break, enter and steal offences and taking into account the matters on the respective Forms 1, I would sentence the applicant to imprisonment for 4 years with a non-parole period of 2 years and 3 months, the first of those sentences to commence on 24 June 2003 and expire 23 June 2007, with the non-parole period to expire 23 September 2005, and the second of such sentence to commence on 24 June 2004 and expire 23 June 2008, with the non-parole period expiring 23 September 2006. The overall effective term would therefore be imprisonment for 5 years and 9 months, with a total non-parole period of 4 years. The earliest date on which the applicant would be eligible to be released on parole would be 23 September 2006. 23 ADAMS J: I agree. 24 HOWIE J: I agree with Dunford J. **********

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