Regina v Rose

LOWER COURT District Court JURISDICTION : LOWER COURT 04/11/0023 FILE NUMBER(S) : LOWER COURT Ainslie-Wallace DCJ JUDICIAL OFFICER :

2004/1856 60264/04

SPIGELMAN CJ BARR J HOEBEN

Wednesday, 22 September, 2004 REGINA v Robert Matthew ROSE Judgment 1 SPIGELMAN: I invite Justice Hoeben to give the first judgment. 2 HOEBEN J: On 15 January 2004 at the Central Local Court the respondent pleaded guilty to the following offence for which he was committed for sentence to the Sydney District Court:

"That on 17 September 2003 he did break and enter the dwelling house of Pam White at 2/44A Bayswater Road Kings Cross and in the said dwelling house did steal certain property of the said Pam White contrary to the provisions of s112(1) of the Crimes Act 1900 the maximum penalty for which was imprisonment for 14 years." 3 On 1 April 2004 at the Sydney District Court before her Honour, the respondent adhered to his plea and asked that each of the following offences be taken into account under the provisions of s33 of the Crimes (Sentencing Procedure) Act 1999:

Three offences that on 17 September 2003 he did dispose of stolen property knowing it to have been stolen; contrary to the provisions of s189 of that Act, the maximum penalty for which was imprisonment for 3 years and;

Three offences that on 17 September 2003 he did make a statement to a pawnbroker knowing it to be false; contrary to the provisions of s24 of the Pawnbrokers and Secondhand Dealers Act 1996, the maximum penalty for which was $550. 4 On 21 May 2004 the respondent came before her Honour for sentence. Her Honour disposed of the matter by utilising the provisions of s11 of the Crimes (Sentencing Procedure) Act 1999 and deferred passing sentence for the purposes of rehabilitation. Her Honour granted the respondent bail to attend court for sentence on 20 May 2005 on certain conditions including continuing to participate in the Bridge Program run by the Salvation Army. It was also a condition that if for any reason the respondent was discharged from that program, he would notify the District Court Criminal registry of that fact within twenty-four hours and that on his release from the Bridge Program, he would report to the city office of the NSW Probation and Parole Service and accept the supervision and obey all reasonable directions of that service for the period of his remand.

Facts 5 On 29 June 2004 the Director of Public Prosecutions signed a Notice of Appeal to the Court of Criminal Appeal pursuant to the provisions of s5D of the Criminal Appeal Act 1912 against the sentence imposed by her Honour on the ground that it was manifestly inadequate. The Notice of Appeal was served on the respondent on 13 July 2004. 6 The background facts can be briefly stated. At about 7.20 am on Wednesday, 17 September 2003 the victim, Pam White, left her home at 2/44A Bayswater Road, Kings Cross locked and secured. Between then and about 4.20 pm the respondent broke into the premises by breaking a window and stole approximately forty compact discs, an NEC video cassette recorder, a camera, a Sony brand walkman and a pair of silver earrings with diamond shaped red stones. The victim returned home at approximately 4.20 pm and found that the window had been broken and the property described had been stolen. 7 About 3 pm that day the respondent sold the NEC video cassette recorder for $50 and later, fifteen of the compact discs stolen from the premises for $30. In each case he produced identification of himself and signed a document by which he stated that he was the owner of the goods. 8 At about 6 pm on that day, the respondent sold ten compact discs stolen from the premises for $10. Again he produced identification of himself and signed a document by which he stated that he was the owner of the goods. 9 These are the offences that the respondent asked to have taken into account. 10 On 19 September 2003 the victim found the NEC video cassette recorder and fifteen of the compact discs at the Alfa Super Bargain Centre and recovered them on payment of $78. The respondent's fingerprints were found on pieces of broken glass from the window of the premises. The respondent was arrested in Bourke Street, Woolloomooloo on 6 October 2003 and charged with the offences.

Remarks on sentence 11 Her Honour's remarks on sentence can be summarised as follows. 12 Her Honour outlined the personal circumstances of the respondent. He was born on 25 May1976 and was aged twenty-eight years at the time of the commission of the offence. The respondent had a long criminal history, which included many convictions for breaking, entering and stealing and other offences for dishonesty for which he had been sentenced to terms of imprisonment. Her Honour noted that in May 2003 the respondent had been sentenced to a two-year suspended sentence for a matter of drive whilst disqualified and was in fact serving this suspended sentence when he committed the offence for which he was to be sentenced. 13 Her Honour noted from the evidence given by the respondent and from the pre-sentence report and psychologist's report that he had developed a drug addiction problem and had commenced using drugs at age fourteen. The respondent had made two previous unsuccessful attempts to rehabilitate himself and he had a continuing problem of relapsing, taking drugs and re-offending. 14 There had been a failed attempt at rehabilitation when the respondent was eighteen years old in 1995 when he went to Linden House. He had again voluntarily admitted himself to the Bridge Program in 2002. He had only completed seven to eight weeks of the program when he left and worked for some eight-nine months after leaving the program. He had then returned to using drugs and committed the offences for which he was to be sentenced. 15 Somewhat unusually, the respondent had appeared for himself and persuaded a Judge of the Supreme Court to grant him bail to attend the William Booth drug rehabilitation program (the Bridge Program). This occurred on 12 February 2004. Thereafter he had continued with success to attend the program. The Bridge Program is a residential program in three stages which occupies a total of ten months. Her Honour noted that by the time he came before her for sentence, the respondent had completed stage one and had entered the second stage of the program which covers thirty weeks. Reports from the program indicated that the respondent had a continuing positive attitude and was progressing well. The respondent was also attending regular meetings of Narcotics Anonymous. He was in a stable relationship with a person who was drug free. 16 Her Honour also noted that the respondent had entered a plea of guilty to the proceedings on 15 January 2004. It was agreed by the Crown that the plea of guilty was entered at the earliest possible opportunity. 17 Before obtaining bail, the respondent had served four months and seven days of pre-sentence custody. This period had been served in protection so that the respondent had been kept in his cell for all but three hours per day and did not have access to drug and alcohol rehabilitation programs whilst in prison. Her Honour noted that that circumstance was likely to recur if the respondent was returned to prison. It is, of course, notorious that drugs are available in prison. 18 Her Honour set out at some length the evidence given by the respondent as to his resolve to rehabilitate himself and remain drug free. Her Honour was impressed by the determination and conviction which the respondent demonstrated both in giving evidence, in obtaining bail for himself and in achieving the degree of success, which he had, in the program up until that time. Her Honour stated: "It was difficult not to be impressed by the offender's determination to rehabilitate himself, and by his insightful evidence." (ROS 4.7) 19 Her Honour accepted as genuine the remorse and contrition expressed by the respondent in his evidence and as set out in the report of Dr Christopher Lennings, 4 March 2004, and in the pre-sentence report. Both those reports concluded that the respondent needed long term structured rehabilitation of the type presently being attempted. 20 Her Honour was well aware of the aggravating features of the offence, in particular that the respondent had a long history of convictions for similar offences and that this offence was committed whilst he was serving a suspended sentence. Her Honour also noted that the Crown opposed anything other than a full time custodial sentence. 21 Her Honour was also conscious of the seriousness of the offence for which the respondent was to be sentenced. She noted that it cost the community very dearly and that courts had been at pains to announce to the community that those who commit such crimes would receive appropriate punishment, particularly persistent offenders. Her Honour made it clear that in normal circumstances the respondent would receive a fulltime custodial sentence. In this particular case, however: "Any sentencing court has to balance the need for specific and general deterrence with a need to support the rehabilitation of those who offend (ROS 6.5)." 22 Accordingly, her Honour indicated her intention of deferring passing sentence pursuant to the provisions of s11 of the Crimes (Sentencing Procedure) Act 1999.

Appeal 23 This appeal is brought by the Director of Public Prosecutions. It is useful to keep in mind the principles which apply to such appeals. As summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70] they are these:

(a) The normal restrictions upon appellate review of the exercise of discretion apply;

(b) Appeals by a prosecuting authority should be rare and unless a clear error of principle is identified it would be exceptional for the court to interfere;

(c) Appeals against inadequacy of sentence are concerned with establishing principle for the guidance of courts whose duty is to sentence, including the avoidance of manifest inadequacy or inconsistency;

(d) The court may decline to interfere even if error has been shown and will be astute to avoid a result which may be in the nature of double jeopardy;

(e) If the court substitutes its own sentence for an inadequate sentence, that sentence will generally be less than that which should have been imposed and in any event towards the lower end of the available range;

24 It was not submitted on behalf of the appellant that her Honour was in error in her approach or application of principle. The only ground of appeal is that the sentence is manifestly inadequate. 25 The thrust of the submissions, on behalf of the Director of Public Prosecutions, was that the totality of the sentence did not reflect the seriousness of the offence (the maximum sentence being fourteen years), the record of previous criminal convictions for like offences and the fact that this offence was committed while the respondent was at conditional liberty. 26 Taking those matters into account, and in particular the guidance of this Court in R v Ponfield (1999) 48 NSWLR 327 no penalty less than a substantial period of full time imprisonment was appropriate. Too much weight had been given to rehabilitation and consequently her Honour's exercise of discretion had miscarried. 27 It was also submitted that because of the weight given by her Honour to the respondent's subjective circumstances, she had failed to impose a sentence that properly reflected the objective seriousness of the offence and had appropriate regard to the need for general deterrence and the fundamental purpose of punishment, namely the protection of society.

Decision 28 Although other judges on the same facts may have reached a different conclusion, I am not persuaded that the sentence in this case involved a wrongful exercise of her Honour's discretion or a clear error of principle. There is nothing in the particular facts of this case which would make this case an appropriate vehicle for establishing principle for the guidance of courts whose duty it is to sentence. I am of the opinion that the deferral of sentencing for rehabilitation pursuant to s11 of the Crimes (Sentencing Procedure) Act 1999 was an outcome reasonably open to her Honour and that error has not been revealed. 29 As was noted by Spigelman CJ in R v Baker [2000] NSWCCA 85: "The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is so particularly with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." (at [19]) 30 There are a number of sentencing principles which support her Honour's approach. 31 Her Honour was well aware of the objective seriousness of the offence and of the need to take into account the respondent's previous record. Nevertheless, as was pointed out by Grove J in Ponfield, there is a broad spectrum of circumstances under which this type of offence can be committed. It is not for the courts to apply some rigid template to such offences but by having due regard to proper sentencing principles "mould an appropriate sentence for a particular offender" - Grove J, Ponfield para 46. 32 In relation to this type of offence: "It will of course be requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in a particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the court to consider it is not of itself a mitigating factor." ( Grove J, Ponfield - para 49) 33 Implicit in that approach is the proposition that when sentencing for this type of offence a judge is given full scope to exercise the sentencing discretion. 34 As was submitted, on behalf of the respondent, this particular offence was at the lower end of the range in relation to like offences. In particular, the following aggravating factors which were identified in Ponfield were absent:

(a) The offence did not have the hallmarks of professional planning organisation or execution.

(b) The offence was not committed at premises of the elderly, the sick or the disabled.

(c) The offence was not accompanied by vandalism or other significant damage to property.

(d) There was one offence only of break, enter and steal.

(e) The offence was not committed as a series of repeat incursions into the same premises.

(f) The value of the stolen property was not particularly high.

(g) The offence was not committed at a time when it was likely that the premises would be occupied;

(h) There was little or no apparent trauma suffered by the victim.

(i) There was no force or threatened force. 35 The extent and nature of the respondent's pre-sentence custody was a matter properly taken into account by her Honour. It amounted to four months and seven days and had been spent in protective custody. There was ample evidence, which her Honour was entitled to accept, that the respondent's time in protective custody had been significantly more onerous than normal prison time. It was accordingly open to her Honour to give to that period an equivalence of at least six months or more of ordinary prison time. (AB v The Queen (1999) 198 CLR 111 at para 105, R v Howard [2001] NSWCCA 309 at [18]). 36 Her Honour was entitled to take into account the respondent's plea of guilty. As was indicated in R v Thomson & Houlten (2000) 49 NSWLR 383 at para 156, the particular discount can be flexible depending on the circumstances and "in some cases the 'discount' will be reflected in a step down in the hierarchy of sentencing options." 37 Where normally the presence of Form 1 offences would require greater weight to be given to personal deterrence and retribution, such is not the case here. The Form 1 offences were incidents directly related to the primary offence. They, in effect, related to the disposition of the stolen property and did not involve separate further acts of criminality upon different victims. It was therefore appropriate for her Honour to focus upon the break, enter and steal offence when considering sentence. This was an appropriate application of the principle of totality. 38 The advantage which her Honour had which this Court lacks was that of observing the respondent give his evidence. She clearly formed a positive view as to the strength of his determination to reform himself and his likelihood of success. This played a large part in her Honour's decision to give the respondent the opportunity to complete the rehabilitation program he had embarked upon. 39 The observation of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213 remains apposite. "It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has been traditionally extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, enable idiosyncratic views of individual judges as to particular crimes or parts of crime to be corrected and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience." 40 Given the period of pre-sentence imprisonment in protective custody, the subjective matters, the early plea of guilty, the evidence of remorse and contrition and the strong likelihood of successful rehabilitation, it was open to her Honour to adopt this particular sentencing option. That is enough to dispose of the appeal. 41 Of additional concern is the fact that the respondent has now completed 8 months of his rehabilitation program and is coming to the end of stage three. To quash her Honour's sentence and re-sentence the respondent to a period of imprisonment would not only defeat the rehabilitation gains already made, but would of necessity involve an element of double jeopardy which this Court has consistently said ought, where possible, be avoided. 42 The order which I propose is that the appeal be dismissed. 43 SPIGELMAN CJ: I agree with Hoeben J and add only this. This Court frequently has before it a crossroads case in which the appearance is given that a person, after a long course of drug addiction, is finally seriously addressing that problem. If the problem is successfully addressed, then one can expect that the principal motivation for criminal conduct will be abolished, as in this particular case. However, all too often these crossroad cases prove to be a short-term experience. Mr Rose should be under no illusion that if on this occasion he fails in his endeavours, and he appears before the Court again, he will not be afforded the same kind of leniency as her Honour was correctly able to afford him on this occasion. 44 BARR J: I agree for the reasons given by Hoeben J that the appeal should be dismissed. I agree with the remarks of the Chief Justice. 45 SPIGELMAN CJ: The order of the Court is that the appeal is dismissed.

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