Regina v Ponfield [1999] NSWCCA 422 | Case summary

JUDGMENT 1 SPIGELMAN CJ : I agree with Grove J. 2 GROVE J: This appeal was heard in conjunction with applications by the Attorney General and the Director of Public Prosecutions for a guideline judgment in connection with offences of breaking, entering and stealing punishable pursuant to s 112(1) of the Crimes Act 1900. 3 The respondent Ponfield pleaded guilty in Wollongong District Court to three counts of breaking entering and stealing and asked to be taken into account on Form 1 an offence of possessing implements capable of entering and driving a conveyance and an offence of failing to appear. J.B. Phelan DCJ deferred passing sentence in respect of counts 1 and 2 upon the respondent entering a recognizance himself in the sum of $500 to be of good behaviour for a period of eighteen months on the condition that he continue under the supervision of the Probation Service and in particular except such direction as it gives in relation to drug rehabilitation "including full time rehabilitation" if that is considered necessary and on the third count his Honour imposed 500 hours community service. 4 In relation to counts 1 and 2 the facts were that at about 8 pm on 3 June 1997 the attention of police was drawn to the respondent whose motor car was being towed away. A search of his vehicle revealed two pillowcases hidden under a jacket in the rear seat, each of which contained a quantity of jewellery, jewellery cases, purses and cash. The respondent admitted breaking into houses in the nearby area. In the first premises the respondent had broken the rear bedroom window with a screwdriver and taken a pillowslip from the bedroom to carry away items. All of the property was recovered with the exception of two small purses, a necklace, an earring and $310 in cash. The total value of unrecovered property was assessed at just over $1,250 and there was some damage to a blind and a jewellery box as well as the broken window. The respondent had cut his finger in the course of his activity and there were apparent bloodstains on the pillowcases. 5 The premises in relation to the third count were entered by removal of a fly screen at the rear kitchen window preparatory to using the screwdriver to break the window. A bedside lamp was also broken. Inside cupboards and wardrobe drawers were opened and clothing scattered around the bedroom. Most of the property from these premises to the approximate value of $2,000 was recovered but miscellaneous pieces of jewellery and a leather case to the value of $486 were unrecovered. 6 The respondent, as I have stated, admitted his offences but was vague in recalling details. He claimed he had taken thirteen Serapax tablets earlier in the evening. In respect of these charges the respondent was bailed to appear in due course. 7 At about 2.45 pm on 5 June 1998 the respondent was observed by police walking along the road carrying a floral pillowcase. There were outstanding warrants for the arrest of the respondent relating to his failure to appear in respect of the charges which became counts 1 and 2 and the respondent was stopped by police and searched. The respondent had placed jewellery, money and documents taken from premises in the pillowcase. He had also removed a video cassette recorder but found it awkward to carry and had placed it under a neighbouring house. 8 After arrest he directed police to the location where he had broken in and made admissions in relation to his offence. 9 The respondent was twenty eight years of age when he appeared for sentence. His record contained eighteen separate entries many of which involved multiple offences. There were eight convictions for breaking and entering and stealing; three convictions for breaking and entering with intent and one conviction for attempting to break enter and steal. In 1992 he was sentenced to sixteen months penal servitude (twelve months minimum term) for robbery in company. 10 The respondent appeared before Mitchelmore DCJ on 7 December 1998 when he was arraigned and pleaded guilty to the counts in the indictment. An adjournment was granted in order for a pre-sentence report to be provided. On 19 February 1999 the respondent appeared before J.B. Phelan DCJ. The pre-sentence report was available and the solicitor then representing the respondent asked for "an adjournment of sorts" in relation to the matter. In response to his Honour's enquiry it was revealed that the pre-sentence report disclosed that the respondent was not suitable for non-custodial options because there was no confirmation that he no longer had a problem with non prescription or illicit drugs. On the other hand, it was pointed out that the converse was not demonstrated either. The solicitor continued: "It would be my application that it be the subject of a relative (sic) lengthy adjournment period in which he would submit himself to urine analysis at the Probation and Parole Service in order to demonstrate his instructions to me that he is completely clean of both prescription and elicit (sic) drugs." 11 Counsel for the Crown responded to enquiry from the presiding judge that there was no opposition to that application. 12 On the adjourned date (21 May 1999) the respondent gave evidence that at the time of the offences he was taking multiple prescription drugs which he had acquired by consulting different medical practitioners. He testified that at the time he had a depressive illness and was suffering from a back injury. He was currently on a methadone program. 13 It can be observed that as of 22 September 1999 the respondent had completed 96¼ hours of community service. A letter was forwarded by the Legal Aid Commission to the Registrar conveying information from the Probation and Parole Service that, as at 31 October 1999, the respondent had completed 137.5 hours and was working satisfactorily. Urine results for the period 26 February 1999 to 4 September 1999 indicated the presence of methadone only. It was submitted on behalf of the respondent that the remand was "clearly" of the type discussed in Griffiths v The Queen 1977 137 CLR 293. The argument was developed to contend that the lengthy adjournment was to give the offender an opportunity to make good his promises "with a view to imposing a non-custodial sentence at the end of it". It was argued that if there was no prospect of a non custodial outcome there was no point in the adjournment. As the extract above shows, the adjournment did not arise from any indication emanating from the presiding judge but rather was a specific application on behalf of the respondent in order to enable him to demonstrate a matter which it was desired to advance in mitigation particularly his adherence to seeking rehabilitation. 14 The absence of objection by the Crown and the granting of the application by the Bench do not to my mind indicate any foreshadowing of the prospect of non custodial sentence. In essence the respondent was being given the opportunity to prove a matter which he desired to raise. 15 In the event the respondent was successful in demonstrating his adherence to his desire to pursue rehabilitation and the presiding judge did impose non custodial sentences. 16 The issue for this Court is whether those sentences were manifestly inadequate and if they were, whether the discretion of this Court to dismiss the Crown's appeal notwithstanding that inadequacy should be invoked. 17 Five aspects can be noted. There were multiple offences; the offence specified in the third count was committed whilst he was on bail, there was damage to property; there were matters taken into account on Form 1 and the respondent had a considerable prior record including offences of identical nature. These are instances of matters of a kind to be taken into consideration in accordance with the guideline judgment delivered today. They are, however, circumstances of aggravation well recognized prior to that judgment and the account to be taken of them is not dependent upon evidence (in the sense elaborated in s29A of the Criminal Procedure Act) used in giving the guideline judgment or upon evidence which was not given in the trial court. 18 The respondent is entitled to consideration for his pleas of guilty and ready admissions of offence. The benefit is rendered somewhat less valuable, however, by the circumstances that he was virtually caught redhanded and the cases against him were overwhelming. In respect of the first two counts despite his admissions, he failed to appear to be dealt with in respect of pleas of guilty. His steps, indeed strides, towards rehabilitation have been commendable and it is in the interests of both prisoner and the community that he achieve his apparent goal. 19 Nevertheless given all matters, including the very favourable matters available to the respondent, I have concluded that the decision of the learned sentencing judge to impose wholly non custodial sentences so completely failed to reflect the objective seriousness of the offences that the sentences must be assessed as manifestly inadequate. 20 In my view the jurisdiction of this Court should be invoked to correct the error. Having regard to the express terms of s29A(2) of the Criminal Procedure Act, I should record that my view is no different from that to which I come if no guideline judgment were to be promulgated. 21 However, as I have said, there is importance not only to the respondent but to the community in the continuance of the respondent upon the path to rehabilitation, and the achievement of what appear to be good prospects of achieving his goal. The conditions of the deferred sentence are matters which should be reimposed during an extended additional term during which the respondent should continue under the supervision of the Probation and Parole Service. The need for this extended term amounts to special circumstances within the meaning of s5(2) of the Sentencing Act 1989. 22 I propose that the Crown appeal be allowed and the orders made in the District Court quashed. In lieu thereof on each count the respondent be sentenced to penal servitude for a total of two years to be served concurrently. Those sentences to consist of a minimum term of six months commencing today, 16 December 1999 and to expire on 15 June 2000 together with an additional term of eighteen months to commence on 16 June 2000. The respondent be ordered released to parole on 15 June 2000 and whilst on parole he be subject to the supervision of the Probation and Parole Service and that it be a condition of parole that he report to that service within forty eight hours of release from custody. It be noted that the matters on Form 1 are taken into account in respect of the sentence imposed upon the first count. 23 SULLY J: I agree with Grove J. **********

Regina v Ponfield

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Judgment (8 paragraphs)

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