Struczewski v R [2008] NSWCCA 8 | Case summary

FRIDAY 1 FEBRUARY 2008 PATRICK MICHAEL STRUCZEWSKI v R Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court. In respect of an offence of break, enter and steal committed on 21 July 2005, he was sentenced to a non-parole period of 3 years with a total sentence of 4 years imprisonment. In sentencing the applicant for this offence, the sentencing judge took into account two matters of goods in custody which appeared on a Form 1 document. The applicant received fixed terms each of 2 years, to be served concurrently with the sentence to which I have just referred, in respect of two separate offences of take and drive a conveyance. The applicant received a further wholly concurrent fixed term of 3 years for an offence of break, enter and steal committed on 16 July 2005. 2 In respect of a further offence of break and enter and steal, committed on 20 July 2005, a non-parole period of 12 months with a total sentence of 2 years and 6 months imprisonment was imposed upon the applicant. In sentencing the applicant for that offence, the sentencing judge took into account four matters on a Form 1 document, namely three offences of obtaining a benefit by deception and one offence of attempted larceny. This sentence was ordered to commence at the expiration of the earlier sentence. The total effective non-parole period is thus one of 4 years with the effective total sentence being 5 years 6 months. 3 The facts of the various offences can be stated quite briefly. On 16 July 2005 the applicant broke into a residential dwelling in Cowra and stole from it a torch, a wallet, a mobile phone, various keys, and almost $1100 in cash. Later that day the applicant was arrested and found to be in possession of the property which he had stolen from that home. 4 In the early hours of 20 July 2005 the applicant broke into a home at Woodstock whilst the owners and their children were asleep. He stole from the home a mobile phone, credit cards and $350 in cash. Later the same morning he attempted to break into a car at Woodstock. However he was disturbed and made good his escape. This conduct gave rise to the charge of attempted larceny which appeared on one of the Form 1 documents. Later the same day police officers located the mobile phone at his home in Woodstock. The applicant used the credit card of the victim of the break and enter offence, to which I have just referred, together with other improperly obtained credit card numbers to make unauthorised purchases of pornographic videos and other related paraphernalia. This conduct gave rise to the offences of obtaining a benefit by deception which appeared on the same Form 1 document. 5 On 21 July 2005 the applicant broke into a home in Bathurst and stole from it a computer, two mobile telephones, an electronic diary, a Visa card, keys to two motor vehicles and $400 in cash. He took the goods to one of the motor vehicles and then removed both motor vehicles from the premises. Following his arrest, his property was searched and the keys to both vehicles were located. 6 The applicant is now aged 39. He gave evidence before the sentencing judge in which he maintained that he had been the victim of sexual abuse in his early teens. His parents separated when he was 14 and he thereafter commenced using illicit drugs. Although he has made numerous endeavours to overcome his dependency upon drugs, those attempts have always ultimately proved to be unsuccessful. On a number of occasions he has left a rehabilitation program without completing it and more recently he found himself in breach of the Drug Court program. As has so often been the case in the past, the present offences were committed in order to feed the applicant's drug addiction. Although the applicant professed to be now motivated to address his offending behaviour, the sentencing judge was understandably somewhat sceptical about his capacity to do so. 7 The applicant has an extensive criminal history which began as far back as 1981 when he was only 13. Since then he has been before the courts, both in this State and elsewhere, on a very regular basis. He has numerous convictions for offences of dishonesty, many of which involve break and enters and the theft of motor vehicles. Furthermore, he has been imprisoned on a large number of occasions for such offences. As the sentencing judge observed, the applicant has spent approximately half of his life in custody. 8 The sentencing judge extended to the applicant a discount of 25% to reflect the fact that he had pleaded guilty to the offences at the earliest opportunity. His Honour was also prepared to find that the applicant was remorseful. His Honour took into account the fact that the applicant was serving his sentence in protective custody because of fears he entertained for his safety from other inmates. His Honour also had regard to the opinion of Professor Greenberg, a forensic psychiatrist, that the applicant has a significant personality disorder associated with a severe poly-substance dependency problem 9 The applicant appeared unrepresented. He provided a written outline of the submissions which he urged in support of the application and amplified those submissions during the course of oral argument. 10 The first complaint made by the applicant is a challenge to the sentencing judge's finding that the offences were planned. His Honour observed that "counsel for the offender has suggested that the offences were opportunistic. I do not agree. I think there was significant but not substantial planning in relation to the break and enter matters and in relation to the use of the cards." It was clearly open to the sentencing judge to conclude that the offences involved a measure of planning. So much is inherent in the nature of the offences themselves. Indeed counsel who appeared on behalf of the applicant at the sentencing hearing candidly acknowledged as much. It is not always helpful to provide labels such as "opportunistic" to describe a particular crime particularly when it is committed by a drug addict. Nonetheless in the present context I understand the expression to be used as a means of contrasting the present offences with those involving a measure of professional planning. There is nothing to suggest that his Honour treated the offences of being of the latter kind. In any event, I am satisfied that this issue played little part in the sentencing judge's determination of the appropriate sentences. I would reject this ground of appeal. 11 The second ground of appeal arises from the fact that the sentencing judge ordered that the sentences should be partially accumulated. The applicant contends that the sentences should have been made totally concurrent since the offences were committed over a period of only five days. It may be immediately observed that counsel who appeared on behalf of the applicant at the sentencing proceedings conceded that a measure of accumulation was called for. 12 In any event I would reject this submission in view of the fact that there were a number of entirely separate acts of criminality committed on separate days involving different victims. In my opinion there was simply no occasion for the imposition of wholly concurrent sentences for each of the offences. 13 The applicant also complained about what he described as the "severity of sentence". In oral argument, the applicant confined his submission to a complaint about the length of the non-parole period. Indeed he described the overall sentences imposed by his Honour as being "reasonably fair". The applicant relied upon two decisions of this Court as being in someway comparable to the circumstances of his case. It suffices to say that the circumstances of those cases are sufficiently different from the present case to be of no real assistance to the disposition of this application. 14 In my view the sentences imposed, either individually or in their overall effect, could not be said to be manifestly excessive. I have come to that conclusion in view of the serious nature of the various offences and the applicant's extensive criminal history which included, as I have said, numerous convictions for offences of a similar kind. Moreover, there was also already a degree of in-built leniency in the sentences imposed, insofar as a number of them were ordered to be served concurrently. 15 I would grant leave to appeal but dismiss the appeal. 16 HODGSON JA: I agree. 17 KIRBY J: I also agree. 18 HODGSON JA: The order of the Court will be that leave to appeal is granted but the appeal is dismissed. **********

Struczewski v R

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