Williams v R

Clinton v R [2009] NSWCCA 276 CASES CITED : England & Phanith v R [2009] NSWCCA 274 Fahs v R [2007] NSWCCA 26 R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327

PARTIES: Brett Michael Williams (Applicant) The Crown

COUNSEL: D O'Neil (Applicant) F Veltro (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2006/6496

McCLELLAN CJ at CL SIMPSON J HIDDEN J

TUESDAY 16 FEBRUARY 2010 WILLIAMS, Brett Michael v R Judgment 1 McCLELLAN CJ at CL: The applicant was convicted after trial of one count that between 21 and 26 February 2004 at Limpinwood he did break and enter a dwelling and steal various art works, artists equipment and household and personal goods. The offence is contrary to s 112(1) of the Crimes Act 1900 and carries a maximum penalty of 14 years imprisonment. There is no standard non-parole period. 2 The applicant was sentenced to a non-parole period of 3 years 9 months with an overall term of 5 years. He seeks leave to appeal against that sentence. 3 The remarks on sentence do not contain a clear account of his Honour's factual findings. However, his Honour refers to various matters in the course of considering the relevant sentencing principles and the facts which are presently relevant do not appear to be in dispute. 4 The victim was an artist and restorer of art works. He worked from his home which is situated in an isolated and remote rural location in northern New South Wales. The only access is from a winding dirt road. The premises are not visible from the road and at times of inclement weather are only accessible by using a 4-wheel drive vehicle. Electricity was provided to the premises by a generator and batteries which were located under the house in an obscure location. There was a burglar alarm at the premises which consisted of a siren on the roof which when activated could be heard from the neighbouring community. The doors to the premises were made of thick timber having been relocated from a church. They were equipped with key operated dead locks. 5 On the evening of Saturday 21 February 2004 the victim left his home. He locked and secured his premises and activated the alarm. While he was away there was heavy rain in the locality. He was contacted by a neighbour who told him his premises were now inaccessible. The victim did not return to his home until Thursday 26 February 2004. 6 When he arrived home he found evidence of the illegal entry. The leads from the generators and batteries underneath his house had been disconnected. The premises had been ransacked and many items stolen. The victim lost about 25 paintings, some of which he was in the process of restoring for other people, his computer and hard drive and various other items. The list of items stolen ran to 37 pages. Some of the paintings which were stolen were original and valuable including one allegedly by the artist Cezanne and others by artists such as Turner, Winslow Homer, John Glover and Sir Arthur Streeton. Apart from the paintings the victim estimated the value of the other personal belongings taken to be in the vicinity of $120,000. These included a 30-40 kilogram cast iron book press. 7 Some months after the robbery a lady living in Queensland discovered a quantity of paintings and other personal items in her garage. She recognised some of the paintings as being stolen from the media publicity given to the crime at the time it occurred and contacted the police. It turned out that the lady's son had unbeknown to her allowed the applicant to store the paintings and other items at his mother's home. The applicant admitted to this person that he had been responsible for the theft. 8 The police subsequently executed a search warrant at the garage. They found other stolen property including a distinctive "George Benson" guitar, a silver propellant pencil with "AMP 1927" etched upon it, white handled scissors, a metal box containing paint brushes, a book on painters, a collection of wooden match boxes, a Persian rug and an ornamental glass table. 9 The applicant took part in an ERISP and gave an account of his possession of the stolen items. He said he had acquired them legitimately from various sources including local markets, a garage sale, pawn shops and "a man in a pub". The victim was insured to the extent of $44,000. His loss was $120,000. All but 6 of the paintings were not recovered. These included two Norman Lindsay etchings purchased by the victim in 1970 and a painting entitled "Two Swans at Sunset" by Sir Arthur Streeton. 10 The subjective circumstances of the applicant were not favourable. He had previously been convicted in 1999 for 2 offences of break and enter with the intent to commit an indictable offence and was sentenced to an overall term of 4 years with a non-parole period of 2 years. He also has convictions for possessing various drugs, assault, malicious injury and high range PCA. 11 The applicant was aged 47 at the time of sentence, was married (although his Honour found that the marriage was in a state of uncertainty) and he has 2 children. 12 The sentencing judge found that there were no mitigating factors that fell within s 21A(3) of the Crimes (Sentencing Procedure) Act. However, he did give the applicant credit for surrendering himself into the jurisdiction of New South Wales shortly before his trial. His Honour found that he could not be satisfied that the applicant was either unlikely to reoffend nor that he had good prospects of rehabilitation, nor that he had shown remorse. 13 There are two grounds of appeal.

Ground 1- his Honour erred in finding the offence was a result of professional planning. 14 In his remarks on sentence the trial judge considered a submission by the Crown prosecutor which was to the effect that his Honour should find that the offence was the result of professional planning, organisation and execution. This phrase was used by Grove J in the guideline judgment in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327. In his judgment Grove J (at [48]) indicated that there were a number of matters which a court should regard as enhancing the seriousness of an offence contrary to s 112(1) of the Crimes Act. These included: "the offence is the result of professional planning, organisation and execution." His Honour did not elaborate on the expression. 15 There may be difficulties in particular cases in determining whether or not an offence was the subject of "professional planning". However, it is plain that an offence which meets this description will not be spontaneous or committed "on the spur of the moment" but will have the hallmarks of deliberate planning with the intention of ensuring that the activity can be undertaken with minimal prospects of detection while optimising the potential reward to the offender. 16 In the present case the sentencing judge remarked that he was unsure what the word "professional" meant suggesting that it may refer to a person who has previous experience of such crimes. As a consequence his Honour discarded the Ponfield formulation and instead determined that the aggravating factor provided in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 was applicable. Section 21A(2)(n) provides as an aggravating factor when sentencing that: "the offence was part of a planned or organised criminal activity." 17 The applicant submitted that this finding by this Honour was wrong. It was submitted that subsection (2)(n) is referring to an offence which itself formed "part of a planned or organised criminal activity." Because the applicant's offence stood alone and there was no evidence that it formed part of a more significant criminal undertaking it was submitted that the aggravating factor referred to in s 21A(2)(n) was not relevant. 18 The complement of s 21A(2)(n) is found in s 21A(3)(b). In as much as s 21A(2)(n) provides that it is an aggravating feature of an offence that it was "part of a planned or organised criminal activity" s 21A(3)(b) provides that it is a mitigating factor if the offence was not part of such a planned or organised criminal activity. Accordingly it was submitted that his Honour erred both in concluding that the offence was part of such an activity and should have accepted the fact that it was not part of such an activity was a mitigating factor. 19 Section 21A(2)(n) has been considered by this Court on previous occasions. In Fahs v R [2007] NSWCCA 26 at [21] Howie J said that the provision conveyed "more than simply that the offence was planned". His Honour suggested that a street dealer who purchased drugs simply to obtain the cash to purchase drugs for his own use is unlikely to fall within the provision (see [22]). However, those responsible for maintaining the drug distribution network are likely to be committing offences which form part of planned or organised criminal activity. 20 In my opinion the approach adopted to s 21A(2)(n) by Howie J is correct. It is only when the particular offence is part of a more extensive criminal undertaking that the subsection is engaged. The fact that an offence was planned does not of itself bring it within the subsection. 21 In the present case it is plain that before committing the offence the applicant must have taken steps to confirm that the victim was not in his home and made preparations to disarm the alarm system. He must have used a significant vehicle to remove all of the items which were stolen. Those items involved significant art works which could only be effectively disposed of through a confined market. If the applicant's crime was to bring him any significant reward he had to appreciate the nature of the objects he was preparing to steal and believed he had a capacity to dispose of them. However, although the offence was obviously planned there is nothing in the evidence to indicate that it formed part of "a planned or organised criminal activity". 22 This is not an end of the matter. To my mind the particular features of this offence mark it out as one which was professionally planned in the sense of that expression when used by Grove J. In ordinary language this was not the work of an "amateur". The execution of the robbery and the goods targeted displayed a level of professionalism. These were matters relevant to the applicant's level of criminality. Although the sentencing judge erred I am not persuaded that that error has influenced the appropriate sentence to any significant extent.

Ground 2 - the sentence was manifestly excessive 23 The maximum sentence for the offence is 14 years imprisonment. The Judicial commission statistics indicate that in the period July 2001 to June 2008 85% of offenders received a prison sentence. The range of sentences extends to a maximum of 8 years reflecting, as is often the case, that sentences at the top of the statutory range, or even near to it, have not been imposed. The statistical sample for this offence is comprised of 1,010 cases, a not insignificant number, which suggests that the sentences which have been imposed may not have reflected the range which the legislature intended. This issue has been commented upon previously Clinton v R [2009] NSWCCA 276 at [35]; England & Phanith v R [2009] NSWCCA 274 at [49]. 24 As I have already indicated the applicant had a history of prior offences which disentitled him to any leniency. He did not accept his guilt and expressed no remorse. The sentencing judge rightly found that he could not be satisfied that the applicant had good prospects of rehabilitation. 25 The present offence was serious. It was carried out in a sophisticated manner and involved the taking of a significant number of items of indeterminate value. They not only had a monetary value but undoubtedly many of them had sentimental values for their respective owners. A significant sentence was inevitable. To my mind the sentence which his Honour imposed was appropriate. 26 Although I would grant leave to appeal, the appeal should be dismissed. 27 SIMPSON J: I agree with McClellan CJ at CL. 28 HIDDEN J: I agree with the orders proposed by McClellan CJ at CL and with his Honour's reasons. Whether the Judicial Commission's statistics demonstrate a pattern of sentence which does not reflect the range intended by the legislature is not a matter which was addressed in argument, and I would prefer to make no comment about it. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.