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NSW Crest

Court of Criminal Appeal
Supreme Court
New South Wales

Medium Neutral Citation:
Luke Nathan Richard BARRETT v R [2011] NSWCCA 213
Hearing dates:
23 February 2011
Decision date:
22 September 2011
Jurisdiction:
Common Law - Criminal
Before:
Whealy JA at [1]; Hidden J at [2] Johnson J at [38]
Decision:

Leave to appeal granted, appeal allowed. Sentences on second, third, fourth and fifth charges are confirmed. Sentence on first charge quashed and, in lieu, taking into account the matter on the Form 1, applicant sentenced to a non-parole period of 3 years and 9 months, commencing on 21 June 2010 and expiring on 20 March 2014, and a balance of term of 2 years and 3 months, commencing on 21 March 2014 and expiring on 20 June 2016.

Catchwords:
CRIMINAL LAW - application for leave to appeal against sentence - various offences arising from one incident - partial accumulation of sentences for those offences - further partial accumulation upon sentence already being served - whether special circumstances should have been found because of accumulation - danger of applicant becoming institutionalised
Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited:
R v Barrett [2006] NSWCCA 348
R v Simpson (1992) 61 A Crim R 58
R v Pollock (1993) 67 A Crim R 166
R v Nightingale [2005] NSWCCA 147
Jackson v R [2010] NSWCCA 162
R V Lemene [2001] NSWCCA 5, 118 A Crim R 131
Category:
Principal judgment
Parties:
Luke Nathan Richard BARRETT (applicant)
REGINA (respondent)
Representation:
Counsel
T Gartelmann (applicant)
J Dwyer (respondent)
Solicitors
S E O'Connor - Legal Aid Commission (applicant)
S Kavanagh - Solicitor for Public Prosecutions (respondent)
File Number(s):
2008/20042; 2008/20046
Decision under appeal
Jurisdiction:
9101
Date of Decision:
2009-11-20 00:00:00
Before:
Hughes DCJ
File Number(s):
2008/20042; 2008/20046

Judgment

1WHEALY JA: I agree with Hidden J.

2HIDDEN J: The applicant, Luke Nathan Richard Barrett, was committed to the District Court for sentence for a series of offences. The first four charges arose from an incident which took place at Parramatta between 17 and 18 October 2006. They were the following:

1.Aggravated break, enter and steal, an offence under s 112(2) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 5 years;

2.Malicious damage, an offence under s 195(1) of the Crimes Act which carries a maximum sentence of 5 years imprisonment;

3.Take and drive a conveyance (deemed larceny), an offence under s 154A(1) of the Crimes Act , also carrying a maximum sentence of 5 years imprisonment;

4.Stealing from the person, an offence under s 94 of the Crimes Act which carries a maximum sentence of 14 years imprisonment.

The sentencing judge was asked to take into account on a Form 1, when sentencing for the first charge, an old offence of break, enter and steal which was committed on 10 November 2001. That offence in its unaggravated form carries a maximum sentence of 14 years imprisonment: s 112(1) of the Crimes Act .

3The fifth charge was a further offence of break, enter and steal, committed on 2 March 2006. His Honour was also asked to deal with a driving offence on a certificate under s 166 of the Criminal Procedure Act , but that has no bearing on the present application.

4His Honour imposed sentences in the reverse order of the numbered charges. On the fifth charge, break, enter and steal, committed on 2 March 2006, the applicant was sentenced to imprisonment for a fixed term of 2 years, commencing on the date sentence was passed, 20 November 2009. On the four charges committed between 17 and 18 October 2006, his Honour sentenced the applicant as follows:

On the fourth charge, stealing from the person, a fixed term of imprisonment for 2 years, commencing on 22 March 2010;

On the third charge, take and drive conveyance, a fixed term of imprisonment for 6 months, commencing on 21 June 2010;

On the second charge, malicious damage, imprisonment for a fixed term of 1 year, also commencing on 21 June 2010;

On the first charge, aggravated break, enter and steal, taking into account the additional charge on the Form 1, imprisonment for 6 years, comprising a non-parole period of 4 years and a balance of term of 1 years, again commencing on 21 June 2010.

5The aggregate sentence was imprisonment for 6 years and 7 months, dating from 20 November 2009 and expiring on 20 June 2016, and an effective non-parole period of 5 years and 1 month, expiring on 20 December 2014. The applicant seeks leave to appeal against those sentences. The only ground of the application is that, when sentencing for the first charge, his Honour did not find special circumstances warranting a departure from the statutory proportion between sentence and non-parole period.

Facts

6Given the limited scope of the application, it is unnecessary to set out in detail the facts of the offences. A brief summary is sufficient to expose their nature and gravity.

7The first four charges relate to a serious criminal episode which extended over about 2 hours on the night of 17 October to the early hours of 18 October 2006. The applicant and a co-offender broke into a building at Parramatta used by the Office of State Revenue. There they stole a variety of items which were the property of that Office, including three palm pilots and five laptops. This was the offence of aggravated break, enter and steal, the circumstance of aggravation expressed in the charge being that the applicant was in the company of his co-offender. However, as will be seen, the offence was attended by a number of other circumstances of aggravation set out in s 105A of the Crimes Act . The applicant was armed with an offensive weapon, a knife. A security guard was deprived of his liberty and corporal violence was inflicted upon him.

8The security guard came upon the offenders while they were in the building but before they had stolen the property. He yelled at them and they ran towards some glass doors. The co-offender shoulder-barged the doors, causing them to crack, but they could not escape. The guard approached them, and the applicant threatened him with a folding knife. He directed the guard to lie face down on the floor, and he was tied up.

9The applicant searched the guard's pockets and removed two mobile phones, a handheld terminal, some keys, and a building access swipe card. This constituted the offence of stealing from the person. He also seized the guard by the collar and struck him across the back of the head twice, dislodging his glasses and causing him some pain.

10The applicant tried to use the swipe card to open the doors, without success. The offenders then shoulder-barged another door and kicked at it, causing it to crack and bend out of shape. The damage to the doors, together with some damage to other fixtures apparently caused during their search for items to steal, constituted the charge of malicious damage.

11On several occasions the applicant asked the guard where a safe and cash could be found, threatening to stab him if he was lying. On one occasion he threatened to kill the guard if he did not disclose how to open a locked cabinet, despite the guard's protests that he did not know how to do so.

12In the event, the co-offender untied the guard after he said that he would show the offenders how to get out of the building. The guard indicated some doors which could be opened by the use of the swipe card. The applicant carried some of the laptops out of the building and drove the guard's vehicle towards the main doors. This gave rise to the charge of take and drive conveyance, although what the purpose was in doing so is not spelled out in the statement of facts.

13Sometime thereafter the two offenders left the building. In the meantime the guard had called police, but by the time they arrived the offenders had made good their escape.

14As I have said, the Form 1 offence was one of break, enter and steal committed on 10 November 2001. In the early evening the applicant broke into a home in West Wollongong and stole a set top box, a gold ring, a Play Station, a computer hard drive and a camera.

15The fifth charge was a break, enter and steal committed in daylight on 2 March 2006 at Sefton. The applicant forced open the front door of a home and stole a number of items, including a CD player, a DVD player, a VCR, a watch, and some money.

16The applicant was later linked to the offences by physical evidence. DNA consistent with his was found at the scene of the offences at Parramatta and Sefton, and his fingerprint was found on a flyscreen which had been removed to effect his entry to the home at West Wollongong. On 23 June 2007 he was arrested for other offences in the Australian Capital Territory. It was in the following year, while he was in custody, that he was charged with the present offences.

17The co-offender was dealt with by another judge. The sentences imposed upon him have no bearing on the present application.

Subjective case

18The applicant was 23 years old at the time of the offences the subject of the five charges, all committed in 2006. (At the time of the offence on the Form 1, committed in 2001, he was 18.) He is now 28. He has a bad criminal record, commencing in Children's Courts in 1999, the year he turned 16. There are numerous entries thereafter, primarily for offences of dishonesty, including break, enter and steal and the unlawful use of motor vehicles. Apart from some charges dealt with in Wollongong District Court in 2006, there are no entries for violence. The disposition of those charges was the subject of a Crown appeal, to which I shall refer in a moment. He has been sentenced to terms of imprisonment on several occasions.

19The Crown appeal related to an offence of aggravated break, enter and steal and three charges of assault occasioning actual bodily harm, committed in the early morning of 1 January 2005. The applicant broke into a home in Wollongong, triggering an alarm which was heard by the three occupants of the home, who were nearby. They returned to the house and intercepted the applicant. In the course of his trying to escape, he assaulted each of them, as well as a neighbour who came to their assistance. The appeal was allowed in part, and the effect of this Court's order was an aggregate term of imprisonment for 4 years and 7 months, with a non-parole period of 1 year and 7 months: R v Barrett [2006] NSWCCA 348.

20The applicant was on parole in respect of those sentences in October 2006, when the offences the subject of the first four charges were committed. At that time he was also subject to suspended sentences imposed by the Drug Court in August 2006 for an offence of break, enter and steal and related offences. I might add that he was subject to that parole and to those suspended sentences when he committed the offences which led to his arrest in the Australian Capital Territory in June 2007. There he was dealt with for a variety of offences, mainly of dishonesty, which included two counts of burglary with intent to steal.

21While he was in custody his parole was revoked, and he was required to serve a balance of term expiring on 22 December 2010. As I have said, the sentences the subject of this application commenced on 20 November 2009, so that roughly 13 months of his aggregate sentence has been served concurrently with that balance of term. Full time custodial sentences were also imposed by the Drug Court, but they had expired before the present sentences were passed.

22The aggregate sentence imposed for the offences in the Australian Capital Territory was imprisonment for 15 months, dating from the date of his arrest there, 23 June 2007. However, because of the revocation of his parole in this State, the applicant remained in custody after that aggregate sentence expired. Accordingly, he has been in continuous custody since 23 July 2007. Upon the expiry of the effective non-parole period imposed in respect of the present sentences on 20 December 2014, he would have been in custody for a little under 7 years and 5 months. He would then be eligible for release on parole for 18 months.

23He had a very dysfunctional upbringing. His parents separated when he was an infant. Thereafter he had little contact with his father and he was brought up by his mother. She had several subsequent partners, who were violent towards her and one of whom, he alleged, abused him physically and sexually.

24He was taken into care by the Department of Community Services at the age of 11, and he also alleged that an officer of that Department sexually abused him when he was 12 or 13 years old. He spent his teenage years living on the streets, in refuges or juvenile institutions. Although he completed year 10 at school, he is only semi-literate. He has had no more than limited, unskilled employment. He has an extensive history of abuse of alcohol and illicit drugs, commencing when he was 9 years old.

25His mother committed suicide in 2002, just before he turned 18. After her death he began to renew his relationship with his father, but his father died of a heart attack in 2005. His only sibling is his younger brother, who lives in the ACT. There were before his Honour a pre-sentence report and a psychiatric report, from which it appeared that he might benefit from drug and alcohol treatment, anger management and psychological counselling generally.

The application

26As noted above, his Honour passed fixed terms of imprisonment on all the charges but the first, in respect of which he sentenced the applicant to imprisonment for 6 years with a non-parole period of 4 years. That sentence maintained the statutory proportion between sentence and non-parole period.

27The only ground of the application is that his Honour erred in failing to find, or to adequately consider, whether there were special circumstances justifying a departure from that statutory proportion. This issue had been raised in submissions on sentence on the basis that, if there were to be accumulation of sentences, the period of parole eligibility might be disproportionate to the total period the applicant would be required to serve in custody. Reference was made to R v Simpson (1992) 61 A Crim R 58 and R v Pollock (1993) 67 A Crim R 166. In his remarks his Honour said, without elaboration, that he did not find special circumstances.

28His Honour expressed no finding about the applicant's prospects of rehabilitation but, given his criminal history, they could fairly have been seen as bleak. Nevertheless, the accumulation of sentences was a significant factor on the issue of special circumstances. What called for consideration was not just the measure of accumulation within the sentences which his Honour passed, but also the measure of the accumulation of those sentences upon the term he was already serving. The effect of the sentences his Honour passed, as I have said, was an aggregate term of 6 years and 7 months with an effective non-parole period of 5 years and 1 month. The proportion of that non-parole period to the aggregate sentence is roughly 77%. When regard is had to the whole period of continuous custody, in round figures 7 years and 5 months, and the period of parole eligibility of 18 months, the proportion is roughly 83%.

29It is well established that accumulation of sentence, whether by reference to sentences passed on one occasion or to a sentence which the offender is already serving, is a basis for a finding of special circumstances. Equally, it is well established that whether special circumstances are found for that reason is a matter for judgment in each case. Certainly, there is not a general requirement that the proportion between effective non-parole period and aggregate sentence should not exceed 75%. Nevertheless, where it does, one would expect the sentencing judge to articulate his or her reasons for doing so and, in the absence of such reasons, the inference might be drawn that the practical effect of the accumulation was overlooked: R v Nightingale [2005] NSWCCA 147, per Tobias JA (with whom Buddin and Hall JJ agreed) at [39] - [46].

30That inference is available here. Furthermore, the case raises another issue, although it is one which does not appear to have been raised before his Honour. There is authority that the risk of institutionalisation might be a basis for a finding of special circumstances. A number of cases concerned with this issue were cited by Fullerton J (with whom McClellan CJ at CL and Simpson J agreed) in Jackson v R [2010] NSWCCA 162 at [24]. Among those cases was R v Lemene [2001] NSWCCA 5, 118 A Crim R 131, decided by a bench comprising Simpson and Dowd JJ. It is unnecessary to recite the facts of that case but, significantly for present purposes, on re-sentence the court found special circumstances largely because of the degree of institutionalisation of that offender: see the leading judgment of Dowd J at [66] - [67], Simpson J agreeing at [9].

31In Jackson , at [25], Fullerton J expressed the approach of the court in Lemene , and the principle underlying it, in this way:

" The adjustment in the statutory ratio was made in that case expressly to assist in the rehabilitation of the offender who had spent little time out of an institution over the course of his adult life having suffered social, educational, psychological and occupational disadvantages in his youth. Her honour's approach, however, underscores the fact that a risk of institutionalisation, even in the face of entrenched recidivism and serious reoffending, is a factor a sentencing court may regard as a sufficiently special circumstance to warrant an adjustment to the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act ."

(In that passage Fullerton J appears to have attributed to Simpson J observations which, in fact, are to be found in the judgment of Dowd J.)

  • 32In my view, the present case called for that approach. The applicant's criminal history discloses that from 2002 until his present period of custody, commencing in 2007, he had been in and out of gaol. In 2002 and in each of the ensuing years he was sentenced to prison terms, and on two occasions he was returned to custody following the revocation of a parole order. As I have said, his present custodial situation is such that by the time he next becomes eligible for release on parole he will have spent almost 7 years in prison.

33No doubt, the genesis of his pattern of offending is his seriously disadvantaged upbringing. By the time he is eligible for parole he will be in his 30's. The stage must be approaching when prison is the only environment in which he can function. Supervision and the sanction of parole when he is next released may be the last chance to break the cycle he has been in since his youth. The author of a pre-sentence report found him to be suitable for a medium to high level of intervention by the Probation and Parole Service.

34In all the circumstances, I am satisfied that the process of sentencing the applicant miscarried and that this court should intervene. If the applicant were released when he becomes eligible for parole, he would be at conditional liberty for 18 months. That is a significant period but, given his background and the length of time he would by then have been in custody, I am satisfied that a longer period would serve his interest and that of the community. That said, any reduction of his effective non-parole period must take account of the need for that period to be sufficient to reflect his criminality.

35In the event of re-sentence, affidavits of the applicant and his solicitor were read. They disclose that, while in custody, the applicant has pursued counselling for a variety of problems arising from his background, including his drug and alcohol addiction. He has established contact with his brother and a girlfriend, both of whom are supportive of him. He has a 9 year old daughter, who is cared for by his brother. He deposes that on his release he hopes to undergo residential drug and alcohol rehabilitation and to be allowed to live in the ACT, where his brother is.

36His criminality is such that only a relatively modest reduction of the effective non-parole period could be justified. I would reduce it by 9 months, yielding a period of parole eligibility of 2 years and 3 months. The proportion of that period to the aggregate sentence, having regard to the whole period of continuous custody, is about 25%. I would achieve that result by reducing the non-parole period on the first charge from 4 years to 3 years and 9 months.

37I would propose the following orders:

  • Leave to appeal is granted and the appeal is allowed.

  • The sentences on the second, third, fourth and fifth charges are confirmed.

  • The sentence on the first charge, aggravated break, enter and steal, is quashed. In lieu, taking into account the matter on the Form 1, the applicant is sentenced to a non-parole period of 3 years and 9 months, commencing on 21 June 2010 and expiring on the 20 March 2014, and a balance of term of 2 years and 3 months, commencing on 21 March 2014 and expiring on 20 June 2016.

38JOHNSON J: I agree with Hidden J.

**********

Amendments

16 February 2012 - Fifth charge now confirmed.
Amended paragraphs: Coversheet & [37]

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Decision last updated: 16 February 2012