Robert Edwin DONN v R [2010] NSWCCA 20 (10 March 2010)

Last Updated: 12 March 2010

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Robert Edwin DONN v R [2010] NSWCCA 20


FILE NUMBER(S):
2007/6991
2007/7791

HEARING DATE(S):
9 December 2009

JUDGMENT DATE:
10 March 2010

PARTIES:
Robert Edward DONN (Applicant)
REGINA (Respondent)

JUDGMENT OF:
James J Hulme J Hidden J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2007/6991, 2007/7791

LOWER COURT JUDICIAL OFFICER:
Woods ADCJ

LOWER COURT DATE OF DECISION:
13 August 2008


COUNSEL:
L Wells SC (Applicant)
M Cinque (Respondent)

SOLICITORS:
S O'Connor (Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)


CATCHWORDS:
CRIMINAL LAW
application for leave to appeal against sentence
aggravated attempted break and enter with intent
aggravated break, enter and steal
pleas of guilty
whether sufficient weight given to finding of special circumstances because of accumulation of sentences and applicant's mental illness
disparity with sentence passed on co-offender
whether applicant had justifiable sense of grievance

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Clarke v R [2009] NSWCCA 49

TEXTS CITED:


DECISION:
Leave to appeal granted, appeal allowed. Sentence on first count confirmed. Sentence on second count quashed. On that count, taking into account matters on the second Form 1, applicant sentenced to non-parole period of 2 years and 3 months, commencing 4 November 2008 and expiring 3 February 2011, balance of term of 2 years and 3 months, commencing 4 February 2011 and expiring 3 May 2013.



JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/6991

2007/7791

JAMES J

RS HULME J

HIDDEN J

Wednesday 10 March 2010

Robert Edwin DONN v R

Judgment

1 JAMES J: I agree with Hidden J.

2 RS HULME J: I agree with Hidden J.

3 HIDDEN J: The applicant, Robert Edwin Donn, pleaded guilty in the District Court to the following counts:

(1) aggravated attempted break and enter with intent to steal, an offence under s 113(2) of the Crimes Act 1900, carrying a maximum sentence of 14 years imprisonment;

(2) aggravated break, enter and steal, an offence under s 112(2) of the Crimes Act, carrying a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years.

He asked the sentencing judge to take into account on a Form 1 two further charges of aggravated break, enter and steal when sentencing him for the first count. When sentencing him for the second count, he asked his Honour to take into account a charge of break, enter and steal on a second Form 1.

4 He was sentenced as follows:

on the first count, taking into account the two Form 1 offences of aggravated break, enter and steal, imprisonment for 3 years, comprising a non-parole period of 2 years and 3 months and a balance of term of 9 months, commencing on 4 November 2006;

on the second count, taking into account the Form 1 offence of break, enter and steal, imprisonment for 4 years and 6 months, comprising a non-parole period of 3 years and a balance of term of 1 year and 6 months, commencing on 4 November 2008.

The aggregate sentence, then, was imprisonment for 6 years and 6 months with an effective non-parole period of 5 years. He seeks leave to appeal against those sentences.

Facts

5 There was an agreed statement of facts. The applicant’s arrest followed a police investigation into a number of break-ins at commercial premises in the central west of New South Wales. It is convenient to deal with the offences in chronological order.

Second Form 1 – break, enter and steal

6 In the evening of 8 November 2004 the Molong RSL Club was locked and secured by staff. In the following morning it was found that the premises had been broken into and that cigarettes, alcohol, cash and electronic equipment had been stolen. Police found that the alarm box had been disabled by cutting the wires. Blood was found on an unopened cigarette packet which, upon later analysis, was found to have DNA of the same profile as the applicant’s. Property lost was of a value of about $6,900.

Count 2 – aggravated break, enter and steal

7 In the early hours of 15 December 2004, police who were conducting surveillance at the Molong RSL Club saw a vehicle drive past the club and return a little later with its lights off. Four people got out of the vehicle, and removed a sledgehammer and a large set of bolt cutters from the boot. They removed the cover from a Telstra pit and interfered with it, with the result that the lights in the club went out. Police saw these people entering the club, then leaving it and getting into the vehicle. They followed the vehicle, but the offenders fled and were not apprehended. Again, later analysis of some items found in the club disclosed DNA consistent with the applicant’s. $930 in cash was stolen, together with property of a value of $570, and there was damage to the premises amounting to about $3,500.

Offence 1 on first Form 1 – aggravated break, enter and steal

8 In the evening of 9 October 2006 the Peak Hill RSL Club was closed for the night, with the doors locked and the alarm set. In the following morning, the bar manager found that the club had been broken into and $10,000 in cash, a television and some alcohol had been stolen. CCTV footage showed the activities of the applicant and other persons in the small hours of that morning. He gained access to a Telstra pit in the footpath and cut several telephone wires. He and others then removed items within the club. They also forced access to a number of poker machines, removing coins and causing substantial damage. The combined loss and damage was estimated at over $40,000.

Offence 2 on first Form 1 – aggravated break, enter and steal

9 In the early hours of 8 December 2006, police responding to a call about a suspicious vehicle in Coonamble found that the premises of a pathology service had been broken into and ransacked. A number of items, details of which were not set out in the statement of facts, were stolen and were not recovered.

Count 1 – aggravated attempted break and enter with intent

10 CCTV footage disclosed that, in the early hours of the same morning, the applicant and three others attempted to gain entry to the Coonamble RSL Club. He and one of the co-offenders, Allan King, gained access to the Telstra pit outside the club and cut telephone lines, so as to disable alarms in premises within the area. The two men then attempted to force entry to the front door of the club with a sledgehammer, without success. The rear glass door of the club was also smashed.

11 The applicant was arrested later that morning. In each of the aggravated offences, the circumstance of aggravation was that he was in company. Four co-offenders in one or more of the offences have been dealt with by other judges. For the purpose of the application, it will be necessary to examine the sentence passed upon King.

Subjective case

12 The applicant was 23 years old at the time of the offences in 2004, and 25 at the time of the 2006 offences. He was 27 at the time of sentence and is now 28. He has an unfavourable criminal history, comprising offences of violence and dishonesty, and had previously served terms of imprisonment. At the time of the 2004 offences he was on parole for aggravated break, enter and steal.

13 He had a difficult background. His parents separated when he was an infant and he was brought up by his father, who abused alcohol and subjected him to harsh physical punishments. Nevertheless, he has maintained a relationship with his father and his siblings, two older sisters. His education was limited, and at school he was suspended on a number of occasions for fighting. He left school at the age of 15, and has never been in employment.

14 He had abused methylamphetamine and heroin from his mid-teenage years. After coming into custody following his arrest for the present offences he was found to be acutely psychotic. In 2007 he was examined by three well known forensic psychiatrists, Professor David Greenberg, Dr Olav Nielssen and Dr Stephen Allnutt. He was found to be suffering from a schizophrenic disorder, apparently related to his long-standing drug abuse. He was placed on a regime of medication. Dr Allnutt saw him again in September 2008, and observed that he manifested “only mild residual symptoms of illness” and was “almost fully recovered”. Nevertheless, the doctor noted that schizophrenia is a chronic mental illness, that there was a risk that he would relapse, and that it was “imperative that he maintains compliance with anti-psychotic medication and avoids substance abuse”.

15 The sentencing judge reduced the sentence on each count by 25% for the utilitarian value of the pleas of guilty. Thus, the sentences of 3 years on the first count and 4 ½ years on the second reflected starting points of 4 years and 6 years respectively. The applicant had been in continuous custody since his arrest on 8 December 2006. However, for reasons which are not entirely clear, it seems that there was an earlier period of custody of a little over a month referable to these offences, and it was for that reason that his Honour directed the sentence on the first count to commence on 4 November 2006.

The application

16 Ms Wells SC, who appeared for the applicant, pursued the application on three grounds. They were that the sentencing judge failed:

(1) to give adequate weight to the applicant’s mental condition;

(2) to properly take into account parity of sentences with co-offenders; and

(3) to give effect to a finding of special circumstances.

Mental illness

Special circumstances

17 It is convenient to deal with the first and third grounds together, as they are related. A comprehensive written submission concerning his Honour’s approach to the psychiatric evidence was refined at the hearing to an argument that he had failed to give it the weight it deserved as a subjective factor and, in particular, had failed to take into account the fact that the applicant’s custodial sentence would weigh more heavily upon him because of his mental illness. As to that last matter, as the Crown prosecutor in this Court pointed out, there was simply no evidence of any effect of the applicant’s illness upon his conditions of custody. Moreover, as I have said, the last report of Dr Allnutt revealed that his course of medication had improved his condition markedly by September 2008.

18 However, the manner in which his Honour did take into account the psychiatric evidence requires closer examination. It is here that the two grounds intersect. His Honour appears to have had regard to the evidence primarily, if not entirely, as a basis for a finding of special circumstances warranting an adjustment of the statutory proportion between sentence and non-parole period. He saw the partial accumulation of the sentences as another basis for that finding.

19 After specifying the sentence which he had arrived at for the first and the second counts, his Honour said of the applicant:

“Whilst he has lost consideration for leniency because he was on parole at the time of the offence following an earlier serious offence, I cannot overlook what the psychologists (sic) say about his mental condition and the need for a longer period of supervised parole. And further, this sentence will be cumulative on the sentence for the other count. So on the principle of totality I must allow an appropriate period on parole following an accumulation of sentences.”

20 His Honour reflected the finding of special circumstances in the sentence on the second count, 4 ½ years with a non-parole period of 3 years. The sentence on the first count, 3 years with a non-parole period of 2 years and 3 months, preserved the statutory proportion. In round figures, that proportion was also preserved in the aggregate sentence of 6 ½ years with a non-parole period of 5 years.

21 Of course, sentencing judges frequently adopt that approach when accumulating sentences, a practice sanctioned by long standing authority: see Clarke v R [2009] NSWCCA 49, per McClellan CJ at CL at [14]. It is also true that, in all cases, the extent of an adjustment of the statutory ratio after a finding of special circumstances is a matter very much within the discretion of the sentencing judge, a discretion with which this Court would not lightly interfere: Clarke at [13] and the cases to which the Chief Judge there referred. Nevertheless, I think that there is force in Ms Wells’ submission that the aggregate sentence fails to give effect to his Honour’s finding of special circumstances, based, as it was, not only on the accumulation of the sentences but also on the psychiatric evidence. That evidence, particularly the passages from Dr Allnutt’s last report quoted above, clearly demonstrated the desirability of a lengthy period of parole eligibility to encourage the applicant’s maintenance of a course of medication and abstinence from illicit drugs.

22 Obviously, it was his Honour’s intention to structure the sentences in such a way as to foster the applicant’s rehabilitation. In my view, that intention would not be given effect by requiring the applicant to serve 5 years in custody followed by a period of parole eligibility of only 18 months. I am satisfied that in the circumstances the effective non-parole period is excessive and, on that basis alone, this Court should intervene.

Parity

23 Although the ground concerning parity was expressed to relate to the sentences of all four co-offenders, the focus was upon the sentence passed upon King. His Honour was aware of the sentence of King, who had earlier been dealt with by another judge.

24 King pleaded guilty to the aggravated attempted break and enter with intent at the Coonamble RSL on 8 December 2006, the offence the subject of the first count in the applicant’s case. In his case there were the same two matters on the Form 1: the offences of aggravated break, enter and steal at the Peak Hill RSL Club on 9 October 2006 and at the pathology premises at Coonamble, also on 8 December 2006. He was sentenced to imprisonment for 2 years and 6 months with a non-parole period of 1 year and 4 months. The applicant, it will be remembered, was sentenced to 3 years with a non-parole period of 2 years and 3 months.

25 King is a much older man than the applicant. He was almost 41 at the time of the offences, and is now 44. His criminal history is longer than the applicant’s, and it also discloses a pattern of offences of dishonesty, for some of which he was sentenced to custodial terms. He was on parole for disqualified driving at the relevant time. He had a long-standing drug habit, but the judge who sentenced him was satisfied that he had a genuine desire to rehabilitate himself, particularly so as to support his partner and be a positive influence on his young son, and found special circumstances accordingly. Like the applicant, his sentence was arrived at after a 25% discount for his plea of guilty.

26 In sentencing the applicant, his Honour did not expressly consider the relativity between the sentence to be passed upon him and the sentences of the co-offenders. In particular, he made no specific reference to the sentence passed upon King and did no more than note that “co-offenders” had previously been dealt with, adding that in the case of the applicant he also had to consider “matters on Forms 1 which in themselves are separate serious offences”.

27 The difference between the sentences passed upon the two men for the offences common to them is 6 months as to the head sentence, and 11 months as to the non-parole period. The question is whether that disparity is such as to enliven this Court’s discretion to intervene on the basis that it engenders in the applicant a legitimate sense of grievance. The difference between the head sentences, although not insignificant, is not great. Ms Wells’ submission was directed primarily to the more marked difference between the non-parole periods. However, some justification for that distinction could be found in the finding of the judge who sentenced King about his prospects of rehabilitation which, as they were assessed, were more favourable than those of the applicant. In King’s case, this appears to have been reflected primarily in the non-parole period, which was only a little more than 50% of the sentence.

28 Further, on the question whether this Court should intervene on the ground of disparity, there are other matters to be considered. As the Crown prosecutor before us pointed out, the sentence passed on King, making all due allowance for his subjective case, was very lenient. Moreover, the applicant’s sentence on the first count cannot be viewed in isolation. He also stood for sentence for other offences in which King was not involved, and his Honour’s task was to structure those sentences in accordance with the principle of totality. In so doing, his Honour directed that the sentence on the first count be served partly concurrently with that on the second count and reflected the finding of special circumstances in the sentence for the second count, rather than the first, with an eye to the resultant aggregate sentence.

29 Taking all these matters into account, I am not persuaded that the disparity is such as to call for this Court’s intervention. This ground is not made out.

Orders

30 In the event, I am satisfied that this Court should intervene to the extent of adjusting the non-parole period for the second count. For the purpose of re-sentence, we received material on affidavit disclosing that while in custody the applicant has pursued educational courses and undertaken a methadone programme. He enjoys the continuing support of his father, who visits him regularly.

31 I would reduce the non-parole period for the second count to 2 years and 3 months. Ms Wells made no complaint about the degree of accumulation of the two sentences, and there is no reason to disturb it. The aggregate sentence, then, would be imprisonment for 6 ½ years with an effective non-parole period of 4 years and 3 months. That non-parole period, in my view, remains sufficient to reflect the applicant’s serious criminality, including the fact that the earlier offences were committed while he was at conditional liberty. The total sentence would expire on 3 May 2013, and he would be eligible for release on parole on 3 February 2011.

32 Accordingly, I would grant leave to appeal and allow the appeal. I would confirm the sentence on the first count. I would quash the sentence on the second count. On that count, taking into account the matter on the second Form 1, I would sentence the applicant to a non-parole period of 2 years and 3 months, commencing on 4 November 2008 and expiring on 3 February 2011, and a balance of term of 2 years and 3 months, commencing on 4 February 2011 and expiring on 3 May 2013.

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LAST UPDATED:
10 March 2010