Norford v R

1. [1]

   SIMPSON AJA: I agree with Bellew J.

2. [2]

   ROTHMAN J: I agree with Bellew J.

3. [3]

   BELLEW J:

INTRODUCTION

1. [4]

   On 22 July 2019 Timothy John Norford (the applicant) pleaded guilty to the following offences before Acting Judge Conlon SC in the District Court of NSW:

   1. (1)

      Between 30 October 2018 and 31 October 2018, at Potts Point in the State of New South Wales, did enter the dwelling house of Stephanie Bourke situate at (xxx) with intent to commit a serious indictable offence therein, to wit, larceny in circumstances of aggravation, to wit, he knew that there was a person present within the said dwelling place.

   2. (2)

      Between 30 October 2018 and 31 October 2018, at Potts Point in the State of New South Wales, did break and enter the dwelling house of Rachel Crerar situate at (xxx) and then in the said dwelling house did commit a serious indictable offence, to wit, larceny in circumstances of aggravation, to wit, he knew that there were persons present within the said dwelling.

2. [5]

   The offending in (1) was contrary to s 111(2) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 14 years’ imprisonment. The offending in (2) was contrary to s 112(2) of the Act and carried a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 5 years’ imprisonment.

3. [6]

   In respect of the offending in (2), the applicant also asked the sentencing judge to take into account a further offence of larceny which was included on a Form 1.

4. [7]

   The sentencing judge imposed the following sentences:

   1. (1)

      in respect of the offending contrary to s 111(2) of the Act, a fixed term of imprisonment of 18 months to date from 31 October 2018 and to expire on 30 April 2020;

   2. (2)

      in respect of the offending contrary to s 112(2) of the Act (and taking into account the matter on the Form 1) a non-parole period of 2 years and 6 months’ imprisonment to date from 31 October 2018 and to expire on 30 April 2021, with an additional term of 2 years and 6 months’ imprisonment expiring on 30 October 2023.

5. [8]

   The applicant now seeks leave to appeal against the sentence imposed for the offending contrary to s 112(2) of the Act, on the single ground discussed below.

THE FACTS OF THE OFFENDING

1. [9]

   The sentencing judge found the facts of the offending to be as follows: [1]

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

1. [10]

   The sentencing judge found that the offending: [2]

2. [11]

   Having made these findings, his Honour concluded that the fact that the applicant had confronted the occupier of the premises precluded a finding that the offending fell at the lower end of the range. He concluded that it fell below mid-range. [3]

THE APPLICANT’S SUBJECTIVE CASE

1. [12]

   A report of Julie Dombrowski was tendered in the applicant’s case on sentence. In outlining the applicant's background, Ms Dombrowski noted that the applicant was 41 years of age, [4] and set out his developmental history as follows: [5]

2. [13]

   The applicant gave evidence before the sentencing judge in the course of which he described this passage of Ms Dombrowski's reports as “a little bit wrong". [6] In correcting what Ms Dombrowski had said, the applicant was asked: [7]

3. [14]

   Ms Dombrowski noted that the applicant had completed Year 10, but had been suspended from school on multiple occasions. [8] She also noted that the applicant's frequent periods of incarceration had significantly disrupted his work history, to the point where he had not been employed for the majority of his adult life.

4. [15]

   The applicant told Ms Dombrowski that he had commenced using cannabis at the age of 11, and that by the age of 15 he was regularly using MDMA, LSD, unprescribed benzodiazepines, amphetamines, cocaine, methamphetamine and heroin. [9] He also told Ms Dombrowski that he had smoked cannabis two weeks prior to his arrest for the offending, that he had used methamphetamine one month prior, that he had used heroin eight months prior, and that he was heavily affected at the time of the offending as a result of having taken 18mg of benzodiazepines immediately beforehand. In terms of his history of drug use, the applicant said the following: [10]

5. [16]

   Ms Dombrowski concluded that the applicant required treatment to resolve the ongoing impacts of past traumatic events, and would require long-term management over several years. [11] She also recommended that neuropsychological testing be carried out in order to allow the applicant to better understand (inter alia) the effect of substance abuse on his neurological functioning.

6. [17]

   A letter from the applicant was tendered in the sentence proceedings, the truthfulness of which he confirmed in the course of giving evidence. [12] In relation to the contents of that letter, the applicant was asked: [13]

7. [18]

   The applicant told the sentencing judge that he had formulated what he described as a “short term plan" to be implemented when he was released from custody. He said: [14]

8. [19]

   His Honour reviewed the applicant's subjective circumstances by reference to the report of Ms Dombrowski. [15] Although not expressly stated, I infer that his Honour accepted that the applicant's expressions of remorse were genuine. [16] His Honour was satisfied that the fact (or the prospect) of the applicant’s institutionalisation constituted a proper basis on which to find special circumstances, and he applied a discount of “about 25%" to reflect the utilitarian value of the applicant's pleas of guilty. [17]

9. [20]

   In sentencing the applicant, his Honour took into account that he was subject to two bonds at the time of the offending. Accordingly, he concluded that he should take no further action in respect of the breaches of those bonds. [18]

THE APPLICANT’S CRIMINAL HISTORY

1. [21]

   The applicant has a lengthy criminal history which has seen him spend numerous periods in custody dating back to February 2001. The sentencing judge’s analysis of that history may be summarised as follows: [19]

2. [22]

   His Honour concluded that the applicant had become institutionalised, to the point where he had not been able to avail himself of periods in the community which were sufficiently long to allow him to secure employment or stable housing accommodation. [20] His Honour concluded that in these circumstances, the applicant’s prospects of rehabilitation were “guarded”. [21]

The aggregate sentence is manifestly excessive taking into account the facts of the applicant's offending, and his subjective case.

1. [23]

   Although the terms in which this ground of appeal is pleaded make reference to an aggregate sentence, counsel for the applicant confirmed before this Court that this was an error, and that the application for leave to appeal was confined to the sentence imposed for the offending contrary to s 112(2) of the Act.

Submissions of the applicant

1. [24]

   Counsel for the applicant submitted that having regard to the findings of the sentencing judge as to the objective seriousness of the offending, the applicant’s early guilty plea, and what was described as the applicant's “rather desolate subjective case", the sentence imposed was manifestly excessive. It was submitted that larceny was at the very bottom of the range of serious indictable offences for the purposes of s 112 of the Act. Accepting that the aggravating circumstance in the present case was that the applicant knew that people were present in the premises where the offending was committed, counsel emphasised that the sentencing judge had recognised this circumstance but had nevertheless concluded that the offending fell below the mid-range. Counsel also emphasised that the sentencing judge had accepted, in large measure, the applicant's subjective case, including the fact that he had struggled with drug issues and homelessness for his entire life, to the point where he had become institutionalised and dependent on custody for food and shelter.

2. [25]

   Whilst obviously accepting that the elements of the offence were made out, counsel for the applicant described the offending as “technical". In doing so, he sought to draw an analogy between this offending and the taking of a mobile phone from a table in a café. He submitted that the two types of offending were comparable because both scenarios involved opportunistic conduct without any element of violence. Counsel accepted that intrusion into a home was a particularly serious matter, but submitted that the Court should not be distracted by the fact that the applicant was found near a children's bedroom within the premises.

3. [26]

   Whilst accepting that the two sentences imposed by the sentencing judge were ordered to be served wholly concurrently, counsel submitted that in the particular circumstances of this case the sentence was manifestly excessive. Counsel pointed, in particular, to the fact that between 2016 and 2018 the applicant’s offending had become both less serious and less frequent. Counsel relied on this as an objective factor in support of the proposition that the applicant had the capacity to rehabilitate himself if relevant services were provided to him. Counsel submitted that in this sense, the applicant was “not without hope” for the future.

4. [27]

   Finally, counsel for the applicant submitted that the sentence imposed did not properly reflect the purposes of sentencing. He submitted that the elements of general deterrence and denunciation of the applicant's conduct had been met by the imposition of a custodial sentence, but that having regard to the fact that any need for the protection of the community was minimal, and also having regard to the applicant's need for rehabilitation, the sentence was manifestly excessive. Counsel submitted that the applicant was not an offender who would be rehabilitated by further and longer periods in custody, and that the community would not be protected by adopting that course. It was submitted that such course did nothing other than exacerbate the applicant's difficulties, and increase the resources that would be required to keep him lawfully in society.

Submissions of the Crown

1. [28]

   The Crown pointed to the significant maximum penalty for the offence, and emphasised that there had been no challenge made to any of the findings of the sentencing judge. The Crown also pointed to the fact that at the time of the offending, the applicant was subject to conditional liberty in the form of two bonds pursuant to s 9.

2. [29]

   The Crown placed considerable emphasis on the applicant's criminal history, and pointed out that notwithstanding the submission before this Court that there was hope for the applicant’s future, there had been no challenge to the finding of the sentencing judge that the applicant's prospects of rehabilitation were guarded.

3. [30]

   The Crown also pointed out that the applicant had the benefit of a finding of special circumstances which reduced the ratio between the head sentence and the non-parole period to one of 50%, and was also the beneficiary of a finding that both terms of imprisonment which were imposed should be wholly concurrent, even though the second of the two offences was committed at a different residence, and involved a different victim.

4. [31]

   The Crown submitted that in all of these circumstances, the sentence was not manifestly excessive.

CONSIDERATION

1. [32]

   The principles which apply when considering a ground of manifest excess were summarised by R A Hulme J in Obeid v R in the following terms: [22]

2. [33]

   Section 112 of the Act is in (inter alia) the following terms:

3. [34]

   For the purposes of s 112(1)(a), the serious indictable offence committed by the applicant was that of larceny. In these circumstances, the observations made in Cohen v R are of significance: [23]

4. [35]

   I am unable to accept the submission of counsel for the applicant that the offending in the present case can be relevantly compared with the theft of a similar item from a table in a café. To begin with, offending of that nature might be described as simple larceny. It involves no breaking and entering of any premises which is obviously a matter of significance. Moreover, and notwithstanding the submission of counsel for the applicant, the Court cannot completely ignore the fact that once inside the premises, the applicant was confronted standing near a bedroom in which children were sleeping. Necessarily, that forms part of the facts surrounding the offending.

5. [36]

   That said, the vast majority of the individual findings of the sentencing judge in relation to the circumstances of the offending were favourable to the applicant. [24] It is difficult to reconcile those findings with his Honour’s conclusion as to the objective seriousness of the offending. Even allowing for the fact that the applicant had been confronted by the occupier of the premises, the weight of the remaining factors identified by his Honour would, in my view, place the offending at a lower level of objective seriousness than that at which his Honour arrived.

6. [37]

   Moreover, having reviewed the applicant's subjective case as set out in the report of Ms Dombrowski, it would appear that his Honour accepted the applicant’s background without demur, and accepted that his expressions of remorse were genuine. Allowing for all of these factors, and bearing in mind that a discount of 25% was applied to reflect the utilitarian value of the applicant's plea of guilty, his Honour adopted a starting point of 6 years and 7 months’ imprisonment.

7. [38]

   Further, the fact that the relevant serious indictable offence was that of larceny, and thus an offence falling at the very bottom of the range of serious indictable offences for the purposes of s 112(2), is a relevant circumstance when considering the objective gravity of the offence. Whilst there is no evidence of the value of the item which was stolen by the applicant in the course of committing the offence, it was a single item of (one infers) relatively small monetary value.

8. [39]

   In my view, all of those circumstances resulted in the imposition of a sentence which was unreasonable or plainly unjust. It follows that the ground of appeal has been made out, and this Court must re-sentence the applicant in the fresh exercise of the sentence discretion.

RE-SENTENCE

1. [40]

   I have summarised the entirety of the evidence which was before the sentencing judge. None of his Honour's findings, be they as to the objective seriousness of the offending or the applicant’s subjective case, have been challenged before this Court and I adopt those findings for the purposes of re-sentence.

2. [41]

   The applicant relied upon his affidavit of 2 April 2020 in which he stated that he has been obtaining counselling whilst in custody which has brought about the realisation that he requires a lengthy period of intensive therapy to learn better ways of dealing with life. [25] He has the support of members of his immediate family including his mother, father and grandmother, and is in regular contact with each of them. [26] He has been employed as a “sweeper" in custody, has not had any disciplinary charges brought against him, and is now on a methadone program to help with his drug addiction. [27]

3. [42]

   Whilst the applicant’s criminal history is obviously significant, his period in the community leading up to the present offending was his longest such period since 2004 to 2007. Since being taken into custody, he has been employed as a sweeper which is a position of responsibility. He has already devised a plan to be adopted on his release with a view to maintaining a more positive lifestyle. Significantly, that appears to be the first occasion on which the applicant, having found himself in custody, has made any plan for his release. That plan addresses a number of aspects of his rehabilitation. All of these steps taken by the applicant are positive and in the circumstances, I tend to accept the submission advanced before this Court that the applicant’s successful rehabilitation is not entirely without hope. As is so often the case, the success of a plan of the kind devised by the applicant is dependent upon him adhering to it, and not lapsing into his previous lifestyle. However, the fact that he has devised the plan at all shows that he has some insight into the need for rehabilitation. All of these matters lead me to be cautiously optimistic about his prospects of rehabilitation.

4. [43]

   Clearly, the applicant’s rehabilitation will benefit from an extended period on parole to assist his reintegration into the community and a finding of special circumstances is appropriate. In that regard I propose to adopt the same ratio as the sentencing judge. I also apply a discount of 25% to reflect the utilitarian value of the applicant’s plea of guilty.

ORDERS

1. [44]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal allowed.

   3. (3)

      The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.

   4. (4)

      In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 30 November 2018 and to expire on 29 August 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 30 August 2020 and expiring on 29 May 2022.