Regina v Thompson

Crimes Act 1900 LEGISLATION CITED: Criminal Procedure Act 1986

Re: Attorney General's Application [No 1] under s26 Criminal Procedure Act; R v Ponfield (1999) 48 NSWLR 327 at [48] R v Cartwright (1989) 17 NSWLR 243 R v Dodd (1991) 57 A Crim R 349 CASES CITED: R v Ellis (1986) 6 NSWLR 603 R v Halkias [2004] NSWCCA 429 R v Thomson; R v Houlton (2000) 49 NSWLR 383

Jay Edward Thompson - Applicant PARTIES: Crown - Respondent

H Dhanji - Applicant COUNSEL: DC Frearson SC - Respondent

S O'Connor, Legal Aid Commission of NSW - Applicant SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL 2004/2537

BRYSON JA BARR J HOEBEN J

Friday, 18 February, 2005 REGINA v Jay Edward THOMPSON Judgment 1 BRYSON JA: I agree with Hoeben J. 2 BARR J: I agree with Hoeben J. 3 HOEBEN J: Offences and sentence

On 24 September 2003 the applicant pleaded guilty to six counts of break enter and steal and one count of break enter with intent to steal in the Local Court at Newcastle. When he appeared before his Honour Judge Coolahan on 26 March 2004, the applicant adhered to those pleas. 4 As to the offences of break enter and steal, two were committed on 22 April 2003, a third was committed between 23 and 24 April 2003, the fourth was committed on 24 April 2003, the fifth on 13 May 2003 and the sixth on 20 May 2003. The break and enter with intent offence was committed on 23 April 2003. 5 In addition to those seven offences, his Honour was asked to take into account a further ten matters on a Form 1. Those comprised three counts of making a false statement to a pawnbroker committed on 22, 23 and 24 April 2003, four counts of break enter and steal committed on 21 April, 1 May, 12 May and 16 May 2003 and three counts of break and enter with intent to steal committed on 30 April, 7 May and 16 May 2003. 6 The maximum penalty for the offence of break enter and steal (s112(1) Crimes Act 1900) is 14 years imprisonment. The maximum penalty for the offence of break enter with intent to steal (s111(1) Crimes Act 1900) is 10 years imprisonment. The maximum penalty for making a false statement to a pawnbroker is a fine of $5,500. 7 The applicant was arrested on 22 May 2003 and has remained in custody in relation to those matters since that date. On 31 March 2004 the applicant was sentenced by Coolahan DCJ as follows:

(i) Second break enter and steal committed on 22 April 2003, taking into account matters on the Form 1 - imprisonment for 5 years with a non-parole period of 3 years 3 months. The non-parole period was to commence on 21 May 2003 and expire on 20 August 2006. The parole period was to commence on 20 August 2006 and expire on 20 May 2008.

(ii) First break enter and steal committed on 22 April 2003 - fixed term of imprisonment of 18 months to commence on 21 May 2003 and expire on 20 November 2004.

(iii) Break enter and steal committed between 23-24 April 2003 - fixed term of imprisonment of 21 months to commence 21 May 2003 and expire on 20 February 2005.

(iv) Break enter and steal committed on 24 April 2003 - fixed term of imprisonment of 2 years to commence on 21 May 2003 and expire on 20 May 2005.

(v) Break enter and steal committed on 13 May 2003 - fixed term of imprisonment of 2 years and 3 months to commence on 21 May 2003 and expire on 20 August 2005.

(vi) Break enter and steal committed on 20 May 2003 - fixed term of imprisonment for 2 years and 6 months to commence on 21 May 2003 and expire on 20 November 2005.

(vii) Break and enter with intent to steal committed on 23 April 2003 - fixed term of imprisonment of 15 months to commence 21 May 2003 and expire on 20 August 2004. 8 The applicant seeks leave to appeal against the above sentences.

Factual background 9 His Honour Coolahan DCJ in his remarks on sentence set out in full the statement of facts in relation to each offence prepared by the Office of the Director of Public Prosecutions. The applicant accepts the accuracy of that statement of facts. The statement is quite lengthy and for the purposes of this appeal, I set out only those facts relating to the two offences committed on 22 April 2003. These provide a sufficient indication of the nature of the other offences for which the applicant was sentenced and also cover the particular offences in relation to which submissions were made to the Court. "As to the first offence committed on 22 April 2003, at about 8.30 am on that date, Terrence Crichton left his house at 96 Lake Road Wallsend to go to work. Mr Crichton returned home at about 2.30 pm that day and found that some time during the day, a window had been smashed and someone had gained entry to the house. He saw that a number of drawers in a dressing table and bedside tables had been pulled out, that wardrobe doors had been opened and drawers and a cupboard had been pulled out. As a result of the break in, a silver coloured Nikon camera with a zoom lens valued at $399 was stolen. The broken window cost $100 to have repaired. On 24 April 2003, the offender attended Ready Cash Pawnbrokers at Charlestown and pawned the camera that had been stolen. (This latter transaction is one of the Form 1 matters). The offender was arrested by police on 21 May 2003 and interviewed. In the course of the interview he told police that he remembered getting into the premises at this address by going through a window that he had smashed. He said that he could not remember what he stole from the premises, but did remember taking a camera. He did not specifically remember attending Ready Cash at Charlestown. As to the second offence, on 22 April 2003 at about 7.45 am on that day, Mary Scott locked all the doors and windows of her house at 50 Lake Road Wallsend and left the premises. About 5.15 pm that afternoon she returned home and saw that the laundry window had been smashed, a wall unit had been moved and a quantity of DVD movies had been stolen. She also saw that a large quantity of jewellery, a Foxtel console, a DVD player, a watch and some travel bags had also been stolen. Mrs Scott told police that the value of the property stolen was in excess of $20,000. On 22 April 2003, the offender attended Newcastle Pawnbrokers and pawned a number of DVD movies. On 23 April 2003 he attended Ready Cash Pawnbrokers at Charlestown and pawned a gold dress ring, a gold pendant and a gold necklace. On 26 April 2003, Mrs Scott received a telephone call from a lady who had found a jewellery box containing some jewellery and her fishing licence and Mrs Scott later retrieved the jewellery box and jewellery from an address in Hamilton and identified the items as belonging to her. They had been among the items stolen on 22 April 2003. On 30 April 2003, Mrs Scott attended Ready Cash at Charlestown and identified the dress ring, the pendant and the necklace as items stolen from her on 22 April 2003. A large quantity of jewellery, the watch, the electrical equipment and the travel bags have not been recovered. Mrs Scott has informed police that the value of the property unrecovered is approximately $15,500. The offender was interviewed about this matter following his arrest. He told police that he had smashed the laundry window with a brick that he had found in the garden. He recalled taking the property referred to and pawning some of it as alleged. When asked where the other stolen property was he replied "It's been sold so it can't be recovered." He said that he did not sell the property to any particular person."

Subjective matters 10 The applicant was born on 23 November 1980 and was accordingly twenty-two at the time of the offences. He was unemployed. 11 Although the applicant did not give evidence in the sentence proceedings, the ERISPs in which he participated referred to a problem with illegal drugs and that the applicant had committed the offences in order to survive. 12 The applicant had a criminal record involving similar offences. In November 1999 he was convicted of five counts of break enter and steal and received a prison sentence. In May 2001 he was convicted of four counts of break enter and steal and was sentenced to a further period of imprisonment. On 20 March 2002 he was convicted of two counts of break enter and steal for which he was sentenced to 12 months imprisonment. The applicant had been released from prison on 7 March 2003, approximately six weeks before the first of the present series of offences. He was on conditional liberty at the time of these offences. 13 His Honour accepted that the applicant's plea of guilty was entered at the first available opportunity and that there was a real utilitarian value in that plea. His Honour allowed a discount of twenty five percent in relation to that plea. His Honour also found that the applicant was genuine in his expression of remorse for the offences. His Honour noted, by way of finding special circumstances, that the applicant was serving his period of imprisonment in strict protection because it was believed by other prisoners that he was a police informant.

Appeal Ground of appeal - The sentencing judge erred in failing to adequately discount the applicant's sentence on the basis of the applicant's assistance to the authorities in the admission of his guilt of the offences 14 The applicant submitted that he admitted to all of the offences in ERISPs conducted on 21 May and 18 June 2003. The longest sentence imposed was in relation to the second offence of 22 April 2003. This offence involved the largest sum of money and included the Form 1 matters. The evidence against the applicant in relation to that offence was that the applicant had on 22-23 April 2003 pawned a number of DVDs and some jewellery. The property pawned was only part of what was taken. 15 The submission was that the applicant's admissions served to make out the case against him. The same argument was also put in relation to the first offence of 22 April 2003 and a further break enter and steal offence which took place on 13 May 2003 and which was included on the Form 1. 16 It was submitted that without this disclosure of guilt, it might have been very difficult for the Crown to establish its case against the applicant in relation to those offences. Despite the importance of that disclosure, and the assistance thereby provided to the Crown, the sentencing judge made no reference to it in his remarks on sentence and accordingly, fell into error. 17 Reliance was placed on the oft quoted passage in R v Ellis (1986) 6 NSWLR 603 at 604: "This Court has said on a number of occasions that a plea of guilty will entitle a convicted person to an element of leniency in the sentence. The degree of leniency may vary according to the degree of inevitability of conviction as it may appear to the sentencing judge, but it is always a factor to which a greater or lesser degree of weight must be given. When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence. The leniency that follows a confession of guilt in the form of a plea of guilty, is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned."

18 The applicant submitted that the admissions of guilt in relation to those offences had a value beyond remorse. His Honour erred in failing to provide a substantial discount to reflect the utility of the applicant's assistance and in doing so, his Honour failed to appropriately recognise the public benefit in encouraging offenders to admit guilt when it cannot otherwise be established. Such error being established, this Court should intervene and re-sentence the applicant.

Consideration 19 The start point in considering sentence is to identify the objective seriousness of the offences. This his Honour did at ROS 6-7 where his Honour said: "The facts disclose serious offences. Break, enter and steal involving private households has virtually reached epidemic proportions. All too often people who have worked hard and saved to buy equipment such as that stolen here, all too often come home to find their premises have been broken into and the items which they have worked so hard to afford have been taken. Invariably, as seems to be the case here, at least so far as some of the items are concerned, these items are taken to a pawn shop which in my view are these days no more than licensed receivers of stolen goods, pawned for a fraction of their worth and never recovered. Very often the items are not covered by insurance, but even when they are, the reality is that the general community bears the price of these crimes through increased insurance premiums. It goes without saying that for offences such as this general deterrence must loom large in the sentencing consideration." 20 It was then necessary for his Honour to balance the aggravating features of the offences against those in mitigation. The aggravating features of these offences far outweighed those in mitigation. 21 The aggravating features were:

(i) The applicant had a record of previous convictions for similar offences since 1999 for which he had received sentences of imprisonment. He had only been released from prison some six weeks before the first of this series of offences.

(ii) Significant sums of money were involved and much of the property stolen was not recovered.

(iii) The offences were committed whilst the applicant was on conditional liberty.

(v) The offences were seventeen in number and occurred over the space of three weeks.

(vi) There was some element of planning, albeit not sophisticated in the offences. 22 These were matters which have been regarded by this Court as having a cumulative effect in enhancing the seriousness of an offence. "A court should regard the seriousness of an offence contrary to s112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is a cumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s21 of the Criminal Procedure Act) . In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 72 ALJR 1416. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value. (ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation - Crimes Act s105A(1)(f)), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than the result of corporal violence, infliction of actual bodily harm or deprivation of liberty - defined circumstances of aggravation: Crimes Act , s105A(1)(c), (d) and (e)). (xi) That force was used or threatened (other than by means of an offensive weapon or instrument - a defined circumstance of aggravation: Crimes Act s105A(1)(a))." ( Re: Attorney General's application [No 1] under s26 of Criminal Procedure Act, R v Ponfield (1999) 48 NSWLR 327 at [48] Grove J.) 23 By way of mitigation his Honour then had regard to the following matters:

(i) There was no wanton vandalism, no violence and the applicant took steps to ensure that the premises were not occupied.

(ii) Although some planning was involved, it was not particularly extensive.

(iii) The applicant's pleas of guilty were entered at the first available opportunity.

(iv) The applicant had co-operated with the police and had been ready to assist them.

(vi) There were special circumstances in that the applicant's imprisonment would be served in strict protection. 24 His Honour allowed in the applicant's favour a discount of twenty five percent for his early plea of guilty. His Honour arrived at the sentences after taking into account their objective seriousness and balancing the competing aggravating and mitigating factors. Subject to the particular matter raised in the appeal, no criticism could be made of his Honour's subsequent exercise of discretion in awarding the sentences which he did. 25 What is said by the applicant is that it was not sufficient for his Honour to award a discount of twenty five percent for the applicant's early plea of guilty. He should have awarded a further discount because the applicant's admissions of guilt filled gaps in what would otherwise be a difficult Crown case. In that regard the admission of guilt should also be characterised as providing assistance to the Crown. 26 In order to deal with that submission it is necessary to set out how his Honour dealt with the early plea of guilty. "Miss Anderson drew my attention to the fact that the offender's pleas were entered at the first available opportunity, and I accept this to be the case. I also accept that whilst there may have been some degree of planning involved in the commission of the offences, they were unsophisticated in the sense that the offender did not wear gloves and left fingerprints behind virtually at all the crime scenes. Whilst this meant that the Crown cases against the offender were strong, had he chosen to go to trial, he may well have been entitled to separate trials which would have occupied a great deal of court time and I am, therefore, of the view that the discount for the utilitarian value of the pleas should be the maximum of twenty five percent. Miss Anderson submitted that the offender was co-operative with police and ready to assist them. This seems to be the case when one looks at the transcript of his two records of interview. It does appear that whilst having a limited memory in relation to some of the offences, he was making an effort to clear the slate as it were. Whilst Miss Anderson submitted that I should accept that the offender was prepared to assist police, it does appear, as Mr Dalrymple submitted, that he was unwilling to name the person to whom he sold some of the goods stolen, describing him apparently only as an older wog who lived at Whitebridge." (ROS 8-9) 27 There are two difficulties with the applicant's submission. The first is its factual basis. It assumes that, absent the admission by the applicant, the Crown would have had a very difficult case. I do not agree. As his Honour pointed out, except in relation to the two offences on 22 April 2003 and the break enter and steal of 13 May 2003 the applicant was directly linked by fingerprints to another eleven offences. All of the offences occurred within a narrow geographical area, over a period of less than three weeks. In relation to the second offence of 22 April 2003 the applicant was directly linked to the disposal of stolen DVDs and jewellery at two separate pawnshops. The applicant's admission of guilt in relation to that offence in particular (being the one for which he received the largest sentence) did not greatly assist the Crown and does not come within the sort of assistance contemplated by R v Ellis. 28 The second difficulty is a conceptual one. Even if the factual basis could be made out - that the Crown would have had considerable difficulty in proving this offence without the applicant's admission, it seems clear that his Honour's discount of twenty five percent for the utilitarian value of the early plea of guilty took into account matters such as this. 29 This is clear from R v Thomson; R v Houlton (2000) 49 NSWLR 383: "Where the accused's own disclosure or confession is the basis of the strong Crown case, this should be taken into account with respect to the utilitarian benefit. Indeed, such conduct should be regarded as the earliest possible timing for a plea." (para 140, Spigelman CJ) 30 The Court clearly envisaged the very situation raised in this ground of appeal as included in the ten - twenty five percent discount on sentence to be awarded for the utilitarian value of an early plea of guilty. The sort of assistance which would entitle a further discount, such as was described in R v Cartwright (1989) 17 NSWLR 243 and R v Dodd (1991) 57 A Crim R 349 was the very kind of assistance which the applicant refused to provide ie, identify the receiver to whom the balance of the goods stolen from Mrs Scott had been delivered. It should also be noted that a similar argument to that raised in this appeal was considered by this Court in R v Halkias [2004] NSWCCA 429, [36]-[39] and was rejected.

Conclusion 31 His Honour did not err by including in his twenty five percent discount on sentence the applicant's co-operation in pleading guilty to the three offences specified in the applicant's submissions. That being the case, there is no basis for this Court to interfere with his Honour's sentences. 32 The orders which I propose are:

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