Regina v S Hassen

COUNSEL : P G Ingram (Crown - Resp) Steven Hassen (In Person - Appl) SOLICITORS : S E O'Connor (Crown - Resp) N/A CATCHWORDS : Criminal Law & Procedure - Sentence - Appeal against severity - Special circumstances LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Regina v Simpson [2001] NSWCCA 534 CASES CITED: Regina v GDR (1994) 34 NSWLR 376 Regina v Ponfield (1999) 48 NSWLR 327 DECISION : Leave to appeal granted.; Appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60227/01 Kirby J Buddin J

Judgment 1 KIRBY J: Mr Hassen stood trial before Shadbolt DCJ and a jury. He was charged with one count of an offence commonly referred to as break, enter and steal (s112(1) Crimes Act 1900). He was found guilty and sentenced to a term of imprisonment of four years with a non parole period of three years. His Honour declined to make a finding of special circumstances. 2 Mr Hassen seeks leave to appeal against the severity of that sentence. On this appeal he has appeared for himself.

The Offence 3 The circumstances giving rise to the charge were unremarkable. The issue was one of identification. A house was broken into by removing a glass window at the rear. Property was stolen (two television sets, one video recorder, head phones, dolls and ear rings). An eye witness gave evidence for the Crown. He said he knew Mr Hassen. He recognised him, amongst other things, because of his "ginger hair". He knew where he lived. He also knew his wife, a person described as being of Aboriginal descent. 4 The witness said he saw Mr Hassen walk across the backyard of the dwelling from which the property was stolen. He watched him pass a television set to his wife over the rear fence. The observations were made over a number of minutes, although Mr Hassen was not aware that he was being watched. It is unsurprising, in these circumstances, that Mr Hassen should have been convicted.

The Appeal 5 The complaints made by Mr Hassen on this appeal are set out in a letter addressed to the court. Fundamentally, they raise three issues: · First, that his Honour failed to make a finding of remorse and take account of remorse; · Secondly, that his Honour ought to have found special circumstances; · Thirdly, that the sentence imposed was manifestly excessive. 6 I will deal with each matter in turn.

The Finding of No Remorse 7 In his remarks on sentence his Honour said this: "He has shown not the slightest contrition and none of the property has been returned". 8 Mr Hassen pleaded not guilty. He did not give evidence on sentence. He told a probation officer after conviction that he was innocent. The finding by his Honour was, in my view, entirely warranted. There was, accordingly, no error by his Honour.

Special Circumstances 9 His Honour was urged to find special circumstances under s44(2) of the Crimes (Sentencing Procedure) Act 1999, thereby justifying a shorter non parole period than might otherwise be imposed under the statute. His Honour declined to do so. The relevant part of his Honour's remarks on sentence were as follows: "I have considered special circumstances. On his behalf the following have been submitted: Firstly that he has a family and he should maintain ties with them. Secondly he is mildly depressed. Thirdly he had a background in which both parents drank, perhaps to excess. Fourthly, there is need for time for rehabilitation from drugs outside the prison. None of these places his circumstances out of the ordinary. Neither individually nor collectively could they be regarded as special unless that word is to lose all meaning. If every mildly depressed prisoner with a wife and child, who had himself parents of slightly less than perfect quality could claim special circumstances, then, indeed, every prisoner has them". 10 Mr Hassen submitted that his Honour paid insufficient regard to the decline in the frequency of convictions in the past five years, compared to the decade or so before 1996. He has not been convicted of a significant crime of dishonesty since 1996, though he has been convicted of other offences. Moreover, he successfully completed a sentence of periodic detention between 1996 and 1998. These matters, in his submission, ought to have been taken into account when determining his prospects of rehabilitation. 11 However, his Honour specifically noted the change in the pattern of his convictions. He said this: "Really the only matter in favour of the prisoner is that his criminality seems, as far as frequency is concerned, to be on the wane." 12 I do not believe, therefore, that there is substance in Mr Hassen's complaint. The only matter which is troubling is whether his Honour's was suggesting that the matters he identified were incapable of being regarded as special circumstances, either because they were not unusual in themselves or unique to Mr Hassen. Certainly some of the matters listed by his Honour were capable of being regarded as special circumstances, especially Mr Hassen's association with drugs. His early criminal history can no doubt be explained by that association. He was addicted to heroin. Since the age of 25 (he now being 33) he has been taking methadone. 13 Whilst some Judges may have regarded that history as justifying, in the interests of rehabilitation, a longer than usual period of supervision, the issue is whether his Honour's refusal to do so caused the sentencing process to miscarry? The approach of an appellate court to such an issue has recently been restated by this court in Regina v Simpson [2001] NSWCCA 534 where the Chief Justice said this, referring to the issue of special circumstances: "The decision is first one of fact - to identify the circumstances - and, secondly, one of judgment - to determine that those circumstances justify a lower proportionate relationship between the non parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character" 14 In the same case, Spigelman CJ, with whom other members of the Court agreed, repeated with approval the following passage from Regina v GDR (1994) 35 NSWLR 376 at 378 in paragraph 51: "The features of the present case which were said to constitute special circumstances were as follows. First, the applicant will serve his sentence in protective custody. Secondly, this is his first term of imprisonment. Thirdly, the applicant surrendered himself to the police, fully admitted his guilt, and in due course pleaded guilty. It would have been open to the sentencing Judge, in the exercise of his discretion, to regard those circumstances, in combination, as special circumstances within the meaning of s5(2). However, his Honour was not bound to do so, or to respond to the circumstances by setting an additional term which was in excess of one-third of the minimum term". 15 Here, his Honour was not bound to regard the circumstances which he identified as amounting to special circumstances. In my view, therefore, no error has been established.

The Sentence was Manifestly Excessive 16 Mr Hassen's real complaint is that the sentence was manifestly excessive. He was convicted on a single count. The value of the goods stolen was about $1,000. The decision of the CCA in Regina v Ponfield (1999) 48 NSWLR 327 identified a number of matters which may affect the seriousness of a charge under s112(1) of the Crimes Act. There were two such matters in the case of Mr Hassen. First, he had, as his Honour remarked, a truly appalling criminal history which began when he was thirteen years old. That history mainly involved repeated offences of dishonesty. Shadbolt DCJ said this: "He has in the last two decades been sentenced in all to thirteen and a half years imprisonment with hard labour and two years three months of periodic detention, none of which has deterred him". 17 Secondly, at the time of the offence, that is, 23 July 1999, Mr Hassen was subject to a two year recognisance imposed by the Local Court on 30 July 1998. 18 The Crown's submissions included statistics compiled by the Judicial Commission in respect of this sort of offence. The offenders in the sample of cases were of a similar age to Mr Hassen and had prior convictions. The sentence imposed upon Mr Hassen, according to these statistics, is within the range of sentencing discretion, though at the upper end of that range. This was a case, as his Honour remarked, in which not only general deterrence but special deterrence, aimed at Mr Hassen himself, was important. His Honour said this: "Submissions have been made for alternatives to full time imprisonment. I have heard from Miss Mitchell and I have seen and read her report. However, the court is of the view that the prisoner's record is such that only full time imprisonment would serve the community's interest, and only such a sentence as would impress upon the prisoner that from now on sentences of such length, or longer, will consume the next two decades if he continues to commit these kinds of crimes with this kind of frequency as he has in the past" 19 The sentence which was imposed by his Honour, although high, even towards the top of the range, was not, in my view, outside the discretion which his Honour had.

Order 20 I would therefore propose: 1. That leave to appeal should be granted.

2. That the appeal should be dismissed. 21 BUDDIN J: I agree. 22 KIRBY J: The order of the Court will therefore be as proposed by me.

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