Singh v R

1. [1]

   PAYNE JA: On 31 January 2018, Mr Singh, the applicant, pleaded guilty to one count under s 112(2) of the Crimes Act 1900 (NSW) of aggravated break and enter and commit serious indictable offence, namely robbery in company. On 6 June 2018, the applicant was sentenced by Herbert DCJ to a non-parole period of 3 years commencing on 31 August 2017 and an additional term of 1 year and 6 months, being a total period of imprisonment of 4 years and 6 months.

Relevant facts

1. [2]

   A statement of agreed facts was tendered before the sentencing judge.

2. [3]

   On 19 July 2017, the applicant and two co-offenders, Mr Ali Raza and Mr Tegbir Singh, attended The Star casino at Pyrmont. The offenders gambled and lost heavily. The victim of the offence, a 95 year old man, was also gambling at The Star at the time. The victim kept a large sum of cash, described in the evidence as “all of his savings” in the inner flap pocket of his jacket. One of the offenders observed the victim accessing what was apparently a large amount of cash from his pocket.

3. [4]

   After some time, the victim left the casino to go home to his residence, a granny flat in North Strathfield. The victim’s family resided in the main house on the property. The offenders followed the victim on the light rail to Central Railway Station, on the train to Strathfield Station, on another train to Concord West Station, and then on foot to the victim’s residence.

4. [5]

   A moment after the victim arrived home and closed the door of the granny flat behind him, one of the offenders knocked on the door. The victim opened the door. The offenders entered the flat by pushing the victim out of the way and back inside the flat and onto a milk crate near the front door.

5. [6]

   One of the offenders covered the victim’s mouth with his hand. One of the offenders put his hand into the inner jacket pocket of the victim and took a sum of $6,250 in cash. One of the offenders gave a $100 note back to the victim before they fled. On 15 May 2019, after the judgment was reserved, the Court was informed that it was agreed by the parties that one paragraph of the agreed facts, stating that the victim was tied by the hands loosely with an electrical extension cord which was located on the floor, should be deleted.

6. [7]

   The offenders returned to The Star and gambled (and lost) the $6,250 in cash that they had taken from the victim.

7. [8]

   The movements of the victim and the offenders were captured on CCTV footage. Crime scene photographs of the victim’s granny flat showed an electrical extension cord near the front door.

8. [9]

   On 11 August 2017, Tegbir Singh and Ali Raza were arrested. Tegbir Singh named the applicant as the victim’s third assailant and told the police that the applicant had lost all of the money that he had earlier that day and that the motivation behind the offence was to recover the money that the applicant had lost. Tegbir Singh said, “There was no particular one person who came up with this idea, it’s just what we all happened to be losing and we lost money moving away and then we saw the money and then”.

9. [10]

   On 29 August 2017, the applicant was arrested in Victoria. On 31 August 2017, he was extradited to New South Wales. On the way to Sydney, the applicant said to the police, “I didn’t mean to do it, it was a mistake”. He was asked, “Why did you do it?” He replied, “I lost all of my money at the casino, it was my university fees”. Police said, “You robbed an elderly man”. He replied, “Yeah, that’s why we gave him back one hundred dollars so he can eat”. During a later police interview, he told police that, whilst he was in the smoking area with Tegbir Singh and Ali Raza, one of them had told him that they had seen an old man who had money.

Decision of the sentencing judge

1. [11]

   The sentencing judge found the objective criminality to be in the mid-range of objective seriousness. Her Honour stated that “being an offence against the person is clearly a relevant factor”. The circumstance of aggravation was that the offence was committed in company. Her Honour stated that “the victim was confronted by the force of numbers and more than one offender was involved in touching the victim and removing his property”, and noted “that being in company is also an element of the robbery so it must not be double counted”.

2. [12]

   Her Honour found that the “fact that the offence was committed in the home of the victim” was an aggravating factor under s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (NSW) or under s 105A of the Crimes Act because the offenders knew that there was a person within a place where the offence was to be committed. Her Honour stated that in this matter “where the offenders chose to follow the victim back to his home and commit the offence of robbery in his home this is a significant matter of aggravation”.

3. [13]

   Her Honour found that the victim, being in his mid-90s, was a vulnerable person. The amount taken from the victim was a not insubstantial sum of money and was described as all of the victim’s savings. Her Honour accepted that the offence was of short duration and involved minimal violence but noted that there was physical contact with the victim when he was pushed into the premises onto a milk crate.

4. [14]

   A pre-sentence report dated 28 May 2018 and a report by a Dr Furst dated 16 May 2018 were before the sentencing judge. Her Honour made the following findings about the subjective factors in the applicant’s case:

   1. (1)

      the applicant is an Indian national living in Australia. He was 26 years old at the time of the offence. He had a stable and supportive upbringing in India and obtained a Bachelor’s degree in computer science and engineering. The applicant denied any history of childhood trauma and there were no indications of conduct disorder. He had no prior convictions;

   2. (2)

      in 2015, the applicant arrived in Australia on a student visa. He commenced a Master’s degree in business at a private college in Victoria. At the time of the offence, he was employed as a taxi driver in Victoria;

   3. (3)

      shortly after his arrival in Australia, the applicant developed a gambling addiction. He gambled between $1,000 and $5,000 per day and went to the Crown casino in Melbourne even when he had no money. He gambled and lost the money sent to him by his parents for tuition fees, gambled and lost his parents’ retirement fund of $45,000-$50,000, and borrowed money from friends which was lost. He was unable to pay his tuition fees and he deferred his studies in July 2017. The applicant was unable to pay his rent and he became homeless in the six months prior to the offence. The applicant saw a psychologist about his gambling on three or four occasions;

   4. (4)

      on the day of the offence, the applicant had travelled to Sydney with the intention to gamble $5,000 his father had sent him for his tuition fees. He told Dr Furst that he had “no luck” in Melbourne and thought he might have more luck in Sydney. Dr Furst stated that the applicant “maintained that Tegbir [Singh] told [him] about the victim and expressed an intention to rob him”. The pre-sentence report stated that the applicant “somewhat minimised his role in the planning of the offence as he stated his friend had organised the plan after seeing the victim and he simply took part as he was ‘desperate’ for money at the time”. The applicant told Dr Furst, “I wasn’t thinking about robbery at the time. I was thinking about the money I had lost, why I lost and why I came to Sydney”. He further stated, “I was thinking millions of times, ‘don’t rob’. I was thinking more than millions of time[s], ‘rob’. I couldn’t refuse, as I lost my fees again. It was the fifth time I [lost] my fees.”

5. [15]

   The applicant denied any history of “problematic” drug and alcohol abuse, but disclosed regular substance use. From the age of 19 in India, he consumed alcohol on a regular basis, up to 300-400ml of scotch whisky at a time. In Australia, he consumed 7-8 standard drinks per day, smoked 1-2g of cannabis and used 0.5g of methylamphetamine per day. He used opium on occasions.

6. [16]

   Dr Furst diagnosed the applicant with substance use disorder (alcohol, cannabis, methylamphetamines) and severe gambling disorder. Dr Furst noted that pathological gambling was previously classified by the American Psychiatric Association as a compulsive disorder, and that it was reclassified in 2013 in the Diagnostic and Statistical Manual of Mental Disorders 5 (“DSM-5”) as a “substance-related and addictive disorder” (gambling disorder), which nomenclature reflected the similarities between pathological gambling and the habitual use of drugs.

7. [17]

   In relation to the applicant’s substance use disorder and gambling disorder, her Honour said, relevantly:

8. [18]

   Her Honour concluded that the applicant had reasonable prospects of rehabilitation and was unlikely to offend if he addressed his gambling addiction and illicit drug use.

9. [19]

   Her Honour found special circumstances in relation to the applicant’s gambling and substance use.

The appeal

1. [20]

   By notice of appeal dated 27 November 2018, the applicant sought leave to appeal against his conviction and sentence on three grounds:

   1. (1)

      The applicant’s conviction constitutes a miscarriage of justice.

   2. (2)

      The sentencing judge erred in not taking into account the applicant’s gambling disorder and substance abuse disorder as mitigating factors.

   3. (3)

      The sentence imposed is manifestly excessive.

Ground 1

1. [21]

   Mr Marr, who appeared for the applicant in this Court, withdrew ground 1 in the course of argument. It is nonetheless desirable to explain the submissions made in writing and why it was that the ground was withdrawn.

2. [22]

   Although the applicant pleaded guilty, ground 1 alleged that a miscarriage of justice had occurred as the agreed facts did not support the charge. This is because, so it was originally submitted, on the agreed facts the applicant did not “break” into the victim’s house and thus he should be permitted to withdraw his plea of guilty. The relevant passage in the agreed facts relating to this ground of appeal is as follows:

3. [23]

   The applicant submitted that the agreed facts support the commission of the offence of robbery in company. It was submitted (at least in writing) that where the occupant or owner of the premises opens the door to the premises in response to a knock on the door, there is no “breaking”, actually or constructively. The applicant and the co-offenders did not trick the victim by knocking on the door and causing him to open it. They did not interfere with the building’s physical security in a recognised way.

4. [24]

   The applicant submitted that if the Court accepts that the agreed facts do not support the offence to which the applicant has pleaded guilty, specifically, that he did “break” and enter the victim’s dwelling-house, the appropriate course is to permit the applicant to withdraw his plea. Where the admitted facts do not support the offence charged, it has been accepted as giving rise to a miscarriage of justice.

Consideration of ground 1

1. [25]

   It is possible, if the agreed facts had not supported the essential elements of the charge, that it would have been appropriate to allow the applicant to withdraw his plea of guilty. Whether that course was appropriate would have involved a close consideration of the precise circumstances in which the plea had come to be entered and the other evidence available to the sentencing judge: Ritchie v R [2017] NSWCCA 21 at [23]-[25] (Johnson J, with whom Simpson JA and Fagan J agreed).

2. [26]

   Section 112 of the Crimes Act provides, relevantly:

3. [27]

   To be guilty of the offence under s 112(1)(a), the applicant must be shown to be a person who both “breaks” and “enters” a dwelling-house or other building. In R v Stanford (2007) 70 NSWLR 474; [2007] NSWCCA 370 at [25], Simpson J (Grove and Hulme JJ agreeing) stated:

4. [28]

   It is common ground here that there was no actual breaking committed by the applicant. The question is whether this was a case where, as Simpson J explained in R v Stanford at [26], again by reference to Gillies’ 1985 text, there has been a “constructive breaking”. Her Honour said:

5. [29]

   The question of “constructive breaking” has been revisited by this Court more recently. In Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195 at [97], Leeming JA (Bellew and Lonergan JJ agreeing), after a magisterial survey of the history of “breaking” at common law and in the colonial predecessors to the Crimes Act offences which became s 112 of the Crimes Act, summarised the law in relation to “constructive breaking” as follows:

6. [30]

   As Leeming JA explained in Ghamrawi v R at [83], s 112 of the Crimes Act uses the term “break” in precisely the same sense as it was used at common law. Given the legislative context and history, it is clear that that term carries its meaning at common law. Simpson J made observations to the same effect in R v Stanford at [24]-[31]. It is thus necessary to determine whether the agreed facts described at [22] above constitute a “constructive breaking” at common law.

7. [31]

   Consideration of some of the most venerable sources of the common law on this question demonstrate that, at common law, to knock at a door of a house with intent to rob its occupants and, upon the door being opened, to rush into the house is a “constructive breaking”. That is because, although there was no actual breaking in the facts just described, the law will not suffer itself to be trifled with.

8. [32]

   In Hawkins, Pleas of the Crown 1716-1721 (Professional Books, 1980) Bk 1, c 38 at 102, the principle is stated thus:

9. [33]

   Blackstone, Commentaries on the Laws of England (Clarendon Press, 1769) Bk 4, c 16 at 226 states:

10. [34]

    By the mid-twentieth century these longstanding principles of the common law regarding “breaking” were understood to be well settled. Gillies’ Criminal Law, a leading Australian text, which was referred to with approval on this subject by this Court in R v Stanford, is consistent with the principle as described by Hawkins and Blackstone. It is necessary to refer to texts in England and Wales before the commencement on 1 January 1969 of the Theft Act 1968 (UK) c 60 which did away with the notion of “breaking”. In JW Cecil Turner (ed), Kenny’s Outlines of Criminal Law 1902 (Cambridge University Press, 19th ed, 1966) at 257, the principle is explained thus:

11. [35]

    In the 1966 edition of Archbold, TR Fitzwalter Butler and M Garsia (eds), Archbold: Pleading, Evidence and Practice in Criminal Cases 1822 (Sweet & Maxwell, 36th ed, 1966) c 10, s 4 at 658, being the last edition of that text before the Theft Act did away with “breaking”, the principle is described thus:

12. [36]

    On the facts here agreed, the offenders (including the applicant) came to the victim’s house with intent to rob him. The offenders knocked on the door and, upon the door being opened, gained entry by rushing into the house, violently pushing the victim out of the way. That was “constructive breaking” at common law and for the purposes of s 112 of the Crimes Act.

13. [37]

    In those circumstances there was no arguable miscarriage of justice in the applicant’s plea of guilty to the charge. Mr Marr was correct to withdraw ground 1 of the notice of appeal.

14. [38]

    It remains only to observe that over 11 years ago in R v Stanford, Simpson J explained the undesirability of fine distinctions about the meaning of “breaking” at common law continuing to govern criminal liability under s 112 of the Crimes Act. Her Honour said:

15. [39]

    I respectfully agree with her Honour that any entry to domestic or business premises for the purpose of committing criminal offences ought to be subject to the same criminal sanctions and that s 112 of the Crimes Act does not affect that outcome.

Ground 2

1. [40]

   The applicant submitted in writing that her Honour did not consider that moral culpability, as assessed for the purposes of sentencing, may be reduced, in circumstances which fall short of demonstrating a lack of capacity to exercise judgment or demonstration that the act was not voluntary. It was submitted that, in the applicant’s circumstances, it seemed obvious that the applicant’s capacity to exercise judgment was impaired. Consequently, the need for general deterrence was reduced. It was submitted that the reclassification of pathological gambling as a “substance related and addictive disorder” (gambling disorder) in DSM-5 does not significantly change the nature or severity of the disorder.

2. [41]

   It was submitted orally that there was a nexus between the applicant’s gambling disorder and the offence because the applicant went to the casino, stole the money and then returned to the casino to gamble the money. It was submitted that, when her Honour said “the offender has reasonable prospects of rehabilitation. He needs to address his gambling addiction and his illicit drug usage if he is to resist committing further offences”, her Honour in fact found that a nexus existed.

3. [42]

   It was submitted that the sentencing judge erred in approaching the matter on the basis that Johnston v R [2017] NSWCCA 53 said that, unless it was other than a willed act or judgment was impaired, the applicant’s gambling addiction could not be taken into account. It was submitted that the decision of Basten JA in R v Jafari [2017] NSWCCA 152 had held that this approach was incorrect.

Consideration of ground 2

1. [43]

   The case law is clear as to the various ways in which an offender's adverse mental condition may be relevant to the assessment of sentence. In the well- known passage in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177], McClellan CJ at CL summarised the principles to be applied in sentencing an offender suffering from an adverse mental condition:

2. [44]

   In Aslan v R [2014] NSWCCA 114, Simpson J (Adams and McCallum JJ agreeing) examined the principles derived from De La Rosa and explained:

3. [45]

   In Johnston v R, Bathurst CJ (Johnson and Fagan JJ agreeing) stated:

4. [46]

   The passage in Basten JA’s decision in R v Jafari (Johnson and Davies JJ agreeing) relied upon by the applicant does not involve any inconsistent statement of principle. R v Jafari was another case where the fact that the offence arose out of a gambling addiction was not a basis for leniency. By reference to Johnston v R, Basten JA said:

5. [47]

   In this case, the sentencing judge considered the question of whether there was a causal connection between the applicant’s gambling disorder and his offending. The evidence established that the applicant was motivated by his gambling addiction to commit the offence. It was open to the sentencing judge to find that the gambling addiction was an explanation for the conduct but not a mitigating factor. A causal connection between the disorder and the offence had not been established on the balance of probabilities. There was no error in this case in her Honour failing to find that the offence was not one which provided an appropriate vehicle for general deterrence or retribution, to the full extent that such an offence might otherwise call for such a response.

6. [48]

   I reject the apparently alternative submission that, by the finding that “the offender has reasonable prospects of rehabilitation. He needs to address his gambling addiction and his illicit drug usage if he is to resist committing further offences”, her Honour in fact found that a causal nexus between the gambling disorder and the offending existed. That submission is inconsistent with her Honour’s clear findings that the gambling addiction provided an explanation for the offence but that “it is not a mitigating factor”.

7. [49]

   The sentencing judge properly took the applicant’s gambling disorder and substance use disorder into account, finding special circumstances in the case of each offender based on the need to address their gambling addictions and, in the case of the applicant, based on the need to minimise the risk of relapse into drug abuse. Her Honour said:

8. [50]

   I would grant leave to appeal against sentence but dismiss ground 2.

Ground 3

1. [51]

   The applicant submitted that, if it is accepted that the applicant’s offence is more properly a robbery in company, aggravated by having been committed in the home of the victim, the sentence imposed was unreasonable or plainly unjust. The amount of money taken, while significant, was not a large amount. The victim was not injured and, while there was physical contact, there was no real violence.

2. [52]

   The applicant submitted that her Honour should have considered the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, which said that a sentence of 4-5 years for the full term for armed robbery is a starting point where there has been a late plea. It was submitted that R v Henry was also applicable to robbery in company. If R v Henry had been considered, it was submitted that the starting sentence would have been less than 5 years, probably less than 4 years, and the non-parole period significantly less.

3. [53]

   It was submitted that her Honour made only a modest finding of special circumstances and failed to take into account the applicant’s serious mental disorders.

Consideration of ground 3

1. [54]

   In Hughes v R [2018] NSWCCA 2, this Court summarised the principles relating to a claim that a sentence imposed is unreasonable or plainly unjust:

2. [55]

   The sentence imposed was not unreasonable or plainly unjust. The condition upon which this submission was advanced, that “the applicant’s offence is more properly a robbery in company”, has not been established. Further, as Mr Marr accepted in oral submissions, the sentence imposed was within the permissible range:

3. [56]

   As to the alleged error in failing to apply R v Henry, the applicant’s counsel did not invite the sentencing judge to consider that guideline judgment either in writing or orally. It would not be appropriate to apply R v Henry without consideration of the context in which the offence occurred.

4. [57]

   Even if R v Henry was applied to the present case, there was more than a limited degree of planning, the applicant was not overly youthful, the 95 year old victim was highly vulnerable, $6,250 was not an insignificant amount of money to the victim, and it cannot be said that pushing a 95 year old man over in his home and onto a milk crate involves “no real violence”. If R v Henry had been considered, a starting point of more than 5 years was open to her Honour. In any event, the guideline judgement in R v Henry is not designed to confine the sentencing discretion in the way here submitted.

5. [58]

   Ground 3 should be dismissed.

Conclusion and orders

1. [59]

   For the foregoing reasons I propose the following orders:

   1. (1)

      Application for leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [60]

   HARRISON J: I agree with Payne JA.

3. [61]

   R A HULME J: I agree with Payne JA.