Watts v Regina [2007] NSWCCA 153 | Case summary

14 June 2007 AUBREY WATTS v REGINA Judgment 1 GILES JA: The applicant applied for leave to appeal against sentences imposed on 11 April 2005 in respect of a number of offences committed between 7 September 2003 and 8 January 2004. An extension of time was necessary; the delay was explained, and it should be granted. 2 The material facts and the basis for the judge's sentencing, and the submissions made in the application, are set out in the reasons of Harrison J, which I have had the advantage of reading in draft. I agree with his Honour's conclusion that the total effective sentence of 11 years with a non-parole period of 7 years was appealably excessive, that being occasioned by the appealably excessive sentence for the offence in Count 2 of the indictment of a non-parole period of 4 years and a total term of 8 years to commence on 8 January 2007. My reasons are a little different from those given by his Honour. 3 The sentencing judge considered that, with the exception of the offences numbered 3 and 8 on the Crown cover sheet (where property of less value was stolen), all the break enter and steal offences appropriately brought the same sentence. The sentence was a non-parole period of 2 years and 3 months and a total term of 3 years and 8 months. The increase in penalty for the offence in Count 2 of the indictment, on taking into account the offences on the Form 1, was therefore 4 years and 4 months. 4 In taking into account the offences on a Form 1 the focus must be on sentencing for the primary offence. The penalty otherwise appropriate for the primary offence is increased, in particular by giving greater weight to the need for personal deterrence indicated by the commission of the other offences and the community's entitlement to retribution for the other offences. The additional penalty need not be small, and sometimes will be substantial, but the focus on the primary offence and the manner in which the other offences are to be taken into account, as explained in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] 56 NSWLR 146, constrain the increase in penalty. 5 In the present case the commission of the offences on the Form 1 undoubtedly required that greater weight be given to the need for personal deterrence. But that was not by an increase in some manner reflecting the large number of other offences; the need was sufficiently made out by regard to less than all the other offences, and their large number did not call for commensurate arithmetic increase in penalty. In the interests of all the victims of the other offences the community was entitled to retribution, but again the large number of other offences did not bring commensurate arithmetic increase in penalty. I do not suggest that the sentencing judge so reasoned; but in my opinion the increase in penalty to which I have referred was a very great increase in penalty from the "base" of 3 years and 8 months. 6 The applicant could not be regarded as a young offender whose youth was to be taken into account as a mitigating factor. But he was only 23 when he committed the offences, and with intellectual functioning within the low-average range. He had a poor criminal history, but was still at an age when rehabilitation with maturity, rather than crushing of hope for the future, was important in the exercise of the sentencing discretion. The judge accepted that the applicant had shown some contrition, and that he was "well motivated by that to better his life and not to return to either illegal drugs or a life of crime", although his Honour was "somewhat pessimistic about his prospect of rehabilitation". The judge found special circumstances in the risk of the applicant becoming institutionalised, but the effect on him, at his stage of life, of a lengthy sentence in my view called for tempering of its length. When there was qualified hope for the future, to impose the sentence of 8 years imprisonment, even with its non-parole period, and by accumulation to have it commence 3 years after the earliest commencement of all the sentences, was a severe penalty. 7 I have concluded that, in combination, the increase in penalty when taking into account the offences in the Form 1 and this severity resulted in a sentence which was outside the range open to his Honour, and was excessive. 8 It is therefore necessary to re-sentence. I agree with the re-sentencing proposed by Harrison J, for which I also adopt the judge's finding of special circumstances. I note that for the overall sentence the non-parole period will be 75 per cent of the total term. I do not think that the effective non-parole period can be reduced consistently with imposing proper sentences; two years of parole will enable re-integration into society. 9 I agree with the orders proposed by Harrison J. 10 HIDDEN J: I agree with the orders proposed by Harrison J. I would quash the sentence imposed on Count 2 for the reasons given by Giles JA. Otherwise, I agree with the reasons of Harrison J, particularly his Honour's observations about the applicant's age and troubled background. 11 HARRISON J: On 11 April 2005 the applicant appeared for sentence before his Honour Judge Sides in the District Court of New South Wales at which time the applicant adhered to pleas of guilty in relation to a total of 13 offences and pleaded guilty in relation to a further two offences on indictment. Out of the total of 15 offences, 11 were offences of break, enter and steal, contrary to s 112(1) of the Crimes Act 1900, each of which carried a maximum penalty of 14 years imprisonment. Of the balance, three were offences of break and enter with intent to steal, contrary to s 113(1) of the Crimes Act 1900, each of which carried a maximum penalty of 10 years imprisonment and one offence of malicious damage contrary to s 195 of the Crimes Act 1900, which carried a maximum penalty of 5 years imprisonment. These offences were committed between 7 September 2003 and 8 January 2004. 12 Pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, the Court was asked to take into account a further 22 offences on the Form 1 Schedules. These offences were committed over the same period. Twenty of them were offences of break, enter and steal. One was an offence of break and enter with intent to steal. His Honour was asked to take these matters into account in connection with Count 2 on the indictment. 13 For the offence of malicious damage the applicant was sentenced to a fixed term of imprisonment of 4 months commencing on 8 January 2004. For the offences numbered 1, 3, 6, 8 and 14 of the Crown cover sheet, his Honour fixed a non-parole period of 2 years of the total sentence of 2 years and 9 months. For Count 1 on the indictment and the offences numbered 2, 4, 7, 9, 10, 11 and 13, his Honour set a non-parole period of 2 years and 3 months of a total sentence of 3 years and 8 months, to commence on 8 January 2006. On Count 2 on the indictment, his Honour took into account the 22 matters on the Form 1 Schedules, and sentenced the applicant to a non-parole period of 4 years of a total term of 8 years imprisonment. That sentence was to commence on 8 January 2007 making the applicant eligible for parole on 7 January 2011. 14 In the result the total effective sentence imposed on the applicant was 11 years with a non-parole period of 7 years. The applicant seeks leave to appeal to the Court, as well as an extension of time within which to do so. The applicant seeks leave to appeal on the single ground that his Honour's determination of the appropriate sentence was manifestly excessive. Background 15 The applicant was born in New Zealand on 23 January 1981. Accordingly, he was 24 years old when sentenced. He committed all of the offences when he was 23. 16 The applicant was raised in New Zealand by his grandparents. His mother apparently moved to Australia to escape his father's violence. He has a close and supportive relationship with his grandparents and was well provided for in a material sense. He called his grandmother Mum. 17 At least at an early age the applicant did not understand why his mother had left him. The only contact he had with her that is mentioned by the applicant and reported to the psychologist Dr Susan Pullman was when his mother returned to New Zealand when the applicant was six years old. 18 The applicant was raised in a neighbourhood where he was exposed to violence, gang fights, firearms, stashes of guns and knives, and domestic violence. He observed domestic violence in the households of some of his relatives. 19 The applicant was educated to primary and early secondary level in New Zealand. He truanted from school. When he was about 14 or 15 years of age he came to Australia. His grandparents considered that he would have a better life here because of the environment in which they lived in New Zealand. He initially lived with his mother in Australia. She had by then remarried and had three children. He did not get on with her. The applicant only resided with his mother for about two weeks before moving to live with an uncle. He later moved to live with an aunt. He did not like the strict discipline that operated in that household but got on well with his two cousins. He attended Hoxton Park High School. He left school part way through year nine. 20 After leaving school the applicant worked as a painter with a family friend. He claims never to have been paid for that work. He then worked pebblecreting for about two months. In 1997 he worked for seven months scaling fish in a retail fish shop. 21 The applicant has been in custody in respect of all of the offences that are the subject of this application since 8 January 2004. During the period between then and his sentencing hearing the applicant sought to complete educational courses but had been unable to do so as he was on remand. However, it would appear that he completed his School Certificate and obtained a forklift licence, an Occupational Health and Safety Certificate and Building and Construction Certificate before he went into custody on the last occasion. Whether or not those certificates were gained while serving other custodial sentences or when he was at large is not made clear. 22 The applicant has a seven-year-old daughter from what had been a long-standing relationship but which had ended by the time he was sentenced. The applicant remained supportive of his daughter and it was clear to his Honour from evidence given before him that the applicant's daughter was important to him. 23 The applicant has an unfortunate criminal history. He has committed similar offences in the past. The applicant committed a break, enter and steal offence while a juvenile but he was not dealt with until 13 March 2000 when he was given a 3 month control order. That was served concurrently with a control order of 15 months with a 3 month non-parole period for malicious wounding. He was released on parole on 24 May 2000. Parole was revoked on 26 September that same year. 24 His first adverse finding was actually in June 1997 when, at the age of 16, he was ordered to serve 100 hours community service for driving at a speed dangerous. That was the maximum period for community service for a juvenile. In November the same year he was given a 9 month control order with a 3 month non-parole period for an offence of using an offensive weapon with intent to prevent his lawful detention and malicious wounding. At the same time, he was given concurrent 3 month control orders for driving in a manner dangerous and for taking and driving a conveyance. His last juvenile offence was shoplifting, dealt with on 24 March 2000. 25 After the applicant turned 18, he was convicted and fined for goods in custody in December 1999, self administration of drugs in January 2000 and possession of drugs on 10 March 2000. On the latter date, he was also given 6 months periodic detention for goods in custody and shoplifting. On appeal in April 2000, he was placed on a 12 month bond for those offences. 26 On 19 October 2000 the applicant was convicted of a break and enter with intent offence at the Bankstown Local Court. He was given a sentence of 12 months with a period of 6 months non-parole. That sentence commenced on 26 September 2000. That was the same day as the revocation of his parole. At the same time, the applicant was given 6 months for larceny and possession of housebreaking implements to be served concurrently. He was due for release on parole on 23 March 2001. 27 Meanwhile, on 9 February 2001 at the Parramatta District Court, bonds that the applicant had entered in March 2000 were revoked and he was placed on 12 months periodic detention. That sentence was directed to commence on 30 March 2001, which was five days after he was released on parole. His periodic detention was revoked at the end of May that year and the applicant returned to custody on 4 June 2001 to serve a sentence of 1 year 1 month and 6 days. He was released on 2 July 2002. That sentence was served concurrently with 3 months in prison given at the Goulburn Local Court on 10 April 2002 for break, enter and steal and shoplifting. On 25 September 2002 he was fined $2000 for shoplifting. 28 On 25 February 2003 the applicant was sentenced to imprisonment for 9 months to commence on 20 January 2003. He was released on 19 July 2003. Accordingly, the first offence with which his Honour was required to sentence the applicant was committed about two months after he was released from gaol. He was not on parole. 29 Of the four and half years between September 2000 and the date of his sentencing the applicant had been in custody for about 3 years and 3 months. He was out of custody for 2½ months from the end of March 2001 to the beginning of June 2001. He spent about 6½ months out of custody from 9 July 2002 until 20 January 2003 and about 6 months from 19 July 2003 to 8 January 2004. The last 6 month period is the period during which the offences that are the subject of the present application were committed. 30 The applicant started using marijuana before he came to Australia. After he arrived in this country, he started using other drugs as well, and by the time he was 18 he was injecting heroin. His crimes were committed to fund his habit. 31 The applicant has never participated in a formal drug rehabilitation program. He has put his name down for such a program at Silverwater but has not been given a place. He gave evidence before his Honour that he was keen to undertake programs whilst in custody to better himself but had been denied that opportunity because of the circumstances in which he had been held. His Honour was of the view that the applicant was well motivated to rehabilitate himself. 32 The applicant gave evidence before his Honour that he wanted to return to New Zealand where he said that work was available with his uncle and where he said he believed he would not be exposed to hard drugs. His grandmother came to Australia to visit him whilst he was in custody and was present at the time he was sentenced. It was clear to his Honour that the applicant had support from his grandmother in New Zealand. 33 The applicant's intellectual functioning is within the low average range. Testing undertaken by the psychologist indicated the presence of depression and anxiety. His Honour noted a history of suicide in the applicant's family. The psychologist recommended that a psychiatrist be consulted about his possible depression. No report from a psychiatrist was placed before the sentencing judge. Nor was there any reliable evidence that the applicant was suffering from clinical depression or anxiety at the time he committed any of the offences. 34 The applicant's upbringing was marked by abandonment by significant adults. That was compounded when his grandmother and grandfather decided to send him to Australia. In addition, whilst living in New Zealand, he was frequently exposed to violence. Although the subject offences did not involve violence, his Honour noted that the applicant had convictions for violence as well as a conviction for using a weapon with intent to avoid detention. He also noted that two of the offences of break, enter and steal involved, amongst other things, the theft of guns. 35 His Honour found that for his plea of guilty the applicant was entitled to leniency based upon the utility of the plea as well as contrition. His Honour found that in each case the pleas of guilty were entered at the earliest opportunity and to reflect the utility of those pleas he reduced the sentences by 25 per cent. 36 The applicant apologised for the offences when he saw the psychologist Dr Susan Pullman and repeated that apology in the course of his sworn evidence before his Honour. The applicant indicated that his feelings of remorse motivated him to do something better with his life in the future. His Honour accepted that these expressions of remorse were genuine but noted that they were belated. His Honour was persuaded that there was some belated contrition that ought appropriately to be reflected in mitigation of penalty. 37 His Honour was of the view that the applicant was unable to claim the benefit of leniency based upon prior good character. His Honour also noted that breaches of conditional liberty, to which he made reference, did not augur well for the applicant's rehabilitation. 38 His Honour accepted that the applicant probably had a Substance Dependence Disorder. At the time of sentence that disorder remained untreated. His Honour noted that, in the opinion of the psychologist, the applicant's personality traits characterised him as within a group lacking responsibility and interest. The likelihood of recidivism was high. 39 His Honour took into account the delay in the finalisation of the matters since the time when the applicant went into custody and his status during that period which had interfered with his ability to use his time more constructively than might otherwise have been the case. His Honour noted that the delay was in no way referable to conduct on the applicant's part and that he was entitled to some leniency because of it. 40 His Honour noted that whilst the applicant had worked in the past, there was no evidence that he had an entrenched work ethic and the skills that he had were limited. His Honour was somewhat pessimistic about the applicant's prospects of rehabilitation. His Honour thought that there was some likelihood that the applicant would reoffend. His Honour noted that the chances of that occurring would be less if the applicant successfully addressed his drug problem. His Honour was somewhat cautious about whether or not the applicant would be able successfully to remain abstinent from illegal drugs. 41 In sentencing the applicant his Honour noted that each offence was serious and that he had considered each matter separately. He considered the Ponfield guidelines. He took into account the offences on the Form 1 Schedules in considering rehabilitation and deterrence. 42 Finally, his Honour noted that the offences were not committed with any display of professionalism and the applicant left fingerprints and other evidence making detection easy. However, the applicant had clearly embarked upon a lifestyle of repeat offending to fund his drug habit. His Honour said that it was difficult in the circumstances therefore to determine whether each offence was spontaneous or premeditated. The pattern of his repeat offending in the months covered by the charges to which he had pleaded guilty and those in the Form 1 Schedules tended to support the inference that there was a degree of repetition in relation to each of the offences. Although the value of the property stolen in each particular case varied, his Honour came to the view that the same sentence was appropriate to each of the break, enter and steal offences, with the exception of those numbered 3 and 8 on the Crown cover sheet.

Submissions 43 On behalf of the applicant it was submitted in this Court that the sentence of 8 years on Count 2 of the indictment was manifestly excessive. It was submitted that the total effective sentence of 11 years, with a non-parole period of 7 years, was also manifestly excessive. 44 Whilst properly acknowledging the limited value of comparative sentences, the applicant drew this Court's attention to a number of cases. In R v Danuca [2005] NSWCCA 45 an offender, described as a "professional thief", was sentenced in relation to seven counts of break, enter and steal on indictment and a further 11 matters of receiving, and goods in custody, to a total aggregate sentence of 8 years with a non-parole period of 6½ years. On the first count on that indictment, a charge of break, enter and steal, and taking a further four matters into account on a Form 1 Schedule, the offender received a sentence of 5 years and 6 months of a total sentence of 8 years. That was reduced on appeal to this Court to 3 years 6 months of a total term of 6 years. The aggregate sentence was reduced to 8 years with a non-parole period of 5½ years. 45 It was submitted on behalf of the applicant that his offences were not committed "with anything like the degree of professionalism" exhibited by the applicant in that case. The total value of the goods stolen by Mr Danuca over a period of six months of approximately $785,000 compared to approximately $83,000 in the present case. The applicant in Danuca was 32 years of age. He also had a prior criminal history. 46 In R v Lay [2006] NSWCCA 45 the respondent to a Crown appeal was sentenced in relation to a total of 18 counts of break, enter and steal, two charges of attempted break, enter and steal, and a charge of larceny with a further 12 similar offences taken into account on Form 1 Schedules. The aggregate sentence imposed at first instance was one of 4 years and 3 months with a non-parole period of 2 years and 9 months. The most serious matter with which the respondent was charged, being break, enter and steal, with 10 further identical matters on a Form 1, was increased on appeal to 3 years and 6 months with a non-parole period of 2 years and 6 months. The aggregate sentence was increased to 5 years and 6 months with a non-parole period of 3 years and 6 months. The respondent in that case was also young and drug addicted with a significant criminal history. 47 In R v Johnson [1999] NSWCCA 431, an appeal against severity was dismissed. The applicant in that case was sentenced in relation to seven break, enter and steal matters with a further 14 matters on a Form 1 Schedule (12 of break, enter and steal and two of break, enter and steal with intent). The applicant received an aggregate sentence of 6 years with a non-parole period of 3 years with an additional term of 3 years. The applicant was a 22-year-old drug addicted offender with an extensive criminal record. On the first count of break, enter and steal, where 14 matters were taken into account on a Form 1, he received a minimum term of 3 years with an additional term of 3 years. Concurrent sentences of 3 years were passed in relation to the other six offences. It is submitted that even though the applicant in Johnson had a lesser number of offences, the sentence imposed was very significantly less. 48 It was submitted on behalf of the Crown that the sentence imposed on Count 2 is not manifestly excessive having regard to the nature and circumstances of that offence, the available maximum penalty, the subjective circumstances of the applicant and the requirement that the sentence be incremented appropriately to reflect that all 22 offences on the Form 1 documents had been taken into account when sentence was imposed on that count. The Crown submits that the total effective sentence of 11 years with a non-parole period of 7 years is not manifestly excessive having regard to the totality of the criminality for which the applicant was to be sentenced. 49 Further, the Crown points to the monetary value of the items stolen and submits that such monetary values of property are each substantial and that the aggregate sum is very substantial whether or not it is at the upper end of the range of amounts stolen by comparison with other offenders. 50 The Crown also draws attention to the fact that at least four firearms were stolen and that none of those firearms has ever been recovered. There is no evidence that any of them was disposed of lawfully. His Honour recognised that the respective offences were serious matters on that account. 51 The Crown contends that, having regard to the criminal antecedents of the applicant, together with the number and seriousness of the offences on the Form 1 documents, a very substantial increment to the specific deterrence and retribution components of the sentence on Count 2 was required appropriately to reflect those offences that had been taken into account. The Crown submits that such was the level of the increment thereby required that the sentence of 8 years was not manifestly excessive having regard to the available statutory maximum after making due allowance for the discount of 25 per cent on account of the plea of guilty, contrition and delay. 52 The Crown made detailed submissions in relation to the cases (referred to above) upon which the applicant relied. It is unnecessary for present purposes to repeat those submissions in detail. It is sufficient to note that the Crown submitted that they provided no material support for the applicant's contention that any sentence in the present matter is manifestly excessive because the facts and circumstances, or the issues under consideration, in those other cases were, in effect, far removed from the present case. 53 Finally, the Crown submitted that having regard to all the relevant circumstances, and notwithstanding any error by the learned sentencing judge, this Court would not be satisfied in relation to the sentence imposed on Count 2, or the aggregate sentence, that some other less severe sentence than that imposed was "warranted in law" and should have been passed: s 6(3) of the Criminal Appeal Act 1912. The Crown referred to R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [79] and Sully J at [97]. 54 The Crown did not oppose the grant of leave to appeal but submitted that the appeal should be dismissed. Conclusion 55 Although it is apparent that his Honour dealt in a commendably thorough and painstaking way with the raft of significantly unfortunate circumstances that afflicted the applicant, he failed in my opinion to have sufficient regard to the applicant's youth or to his troubled past. Moreover, in my opinion, even notwithstanding the number of offences involved, the total value of the items stolen was comparatively modest by the standards of professional criminal activity that is so often seen in cases such as R v Danuca (supra) to which reference has already been made. 56 The applicant is now 26 years of age. At the date of his application to this Court he faces approximately a further 3 years and 8 months before he will be eligible for parole. He will by then be almost 30 years of age. He will have spent something in the order 30 per cent of his life in gaol. 57 In my experience, narcotic addiction, and the tragic and devastating consequences for the addict, his family and the community, is not something that the addict chooses in the true sense of the word. As in the case of the present applicant, heroin addiction is demonstrably destructive of physical and mental health, social standing and acceptance, and financial security and stability. It puts at risk, and often destroys, the patience and forbearance of loved ones whose own lives are thrown into turmoil. But it does so most often as a response by the addict to painful and otherwise apparently inescapable circumstances. As his Honour accurately noted, these matters can rarely, if ever, excuse criminal behaviour and both first-time and repeat offenders should not misapprehend the seriousness with which the courts regard offences of this kind. Correspondingly, however, the courts are required quite properly to have regard to the often compelling personal circumstances of offenders in each individual case. In my opinion, the subjective factors operating in the present case are particularly compelling. 58 In the nature of things, courts are limited in the range of options available to them to deal with repeat offenders such as the applicant. There is no doubt that the applicant should have been sentenced to a period of imprisonment. Even if his Honour had had a significantly wider range of sentencing options available to him, it is not possible to see how the present applicant should not have been sentenced to some term of imprisonment. Notions of retribution, punishment and deterrence cannot be wholly discarded or disregarded even in the most deserving of cases. Correspondingly, rehabilitation is also a very important factor to be taken into account, particularly in the case of a young offender such as the applicant. 59 I have had regard to the significant wisdom, often expressed, to the effect that this Court should not interfere with sentences imposed by other courts in a way that appears to be overly meddlesome or unnecessarily interventionist. There are good reasons for this, not the least of which is the special advantage enjoyed by a sentencing judge in the normal course. 60 In my opinion, the imposition of a sentence of 8 years and a non-parole period of 4 years for the offence in Count 2 on the indictment, in the particular circumstances of the present case, was manifestly excessive. This is so even having regard to the 22 matters on the Form 1 Schedule that his Honour took into account. It fails properly to balance, and in so doing to afford proper weight to, the extremely unfortunate combination of factors that influenced the applicant to commit the offences with which he was charged and to which he pleaded guilty. In my opinion, some less severe sentence was warranted in law and should have been passed. 61 In my opinion, an appropriate sentence for the offence in Count 2 on the indictment, taking into account the offences on the Form 1, is a non-parole period of 3 years and a total term of 5 years. I adopt his Honour's commencement of that sentence on 8 January 2007. The applicant's effective sentence will therefore be 8 years with a non-parole period of 6 years, making him eligible for parole on 7 January 2010. Extension of Time to Apply for Leave to Appeal 62 The applicant required an extension of time for leave to appeal. In support of that application the applicant swore and relied upon an affidavit dated 26 April 2007. That affidavit was read, on the usual basis, without objection. That affidavit accurately reveals that the sentences, which are the subject of the present application, were imposed on two separate occasions, namely, 11 April 2005 and 29 May 2006. The applicant said that he decided not to lodge an appeal against the sentences imposed on the first occasion until all matters had been resolved and, in his words, he "had been sentenced on everything". The application to extend time was not opposed. In the circumstances it is appropriate that the application to extend time should be granted. Orders 63 I would make the following orders: -

Watts v Regina

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