O'Grady v Regina [2013] NSWCCA 281

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: O'Grady v Regina [2013] NSWCCA 281 Hearing dates: 21 October 2013 Decision date: 18 November 2013 Before: Hoeben CJ at CL at [1] Johnson J at [2] Bellew J [3] Decision: (i) The application for an extension of time is dismissed Catchwords: CRIMINAL LAW - appeal - application for extension of time on the basis of asserted Muldrock error - error established

CRIMINAL LAW - appeal - offence of aggravated breaking and entering in the nature of a home invasion - where applicant found to have been the orchestrator of offence - where offence committed in company - where violence perpetrated on victim resulting in significant injuries requiring hospitalisation - no lesser sentence warranted in law - application for extension of time dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: Abdul v R [2013] NSWCCA 247 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 O'Grady v R [2012] NSWCCA 62 Palijan v R [2010] NSWCCA 142 Category: Principal judgment Parties: Andrew William James O'Grady - Applicant Regina - Respondent Representation: Counsel: Mr C Smith - Applicant Ms N Noman SC - Respondent Solicitors: Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent File Number(s): 2009 / 9964006 Publication restriction: Nil Decision under appeal Date of Decision: 2010-09-17 00:00:00 Before: Murrell DCJ

Judgment 1HOEBEN CJ at CL: I agree with Bellew J. 2JOHNSON J: I agree with Bellew J. 3BELLEW J: Following a trial, the applicant was convicted of an offence of specially aggravated break and enter contrary to s. 112(3) of the Crimes Act 1900 (NSW). The offence was carried out in the company of two other persons, Bradley Carter ("Carter") and Robert Puha ("Puha"). 4The offence carries a maximum penalty of 25 years imprisonment, with a standard non-parole period of 8 years imprisonment. 5The applicant was sentenced by her Honour Judge Murrell to a non-parole period of 5 years and 6 months imprisonment, with an additional term of 3 years and 6 months. He is eligible for release on parole on 22 November 2015. 6The applicant seeks an extension of time in which to seek leave to appeal against the sentence imposed. The background to that application is set out in an affidavit of the applicant of 20 September 2013 along with an affidavit of Ruth Chalmers, solicitor, of 20 September 2013. In summary, shortly after he was sentenced the applicant instructed his then legal representatives to lodge a notice of intention to appeal against conviction and sentence. As events transpired, the appeal proceeded as one against conviction only. The applicant is not able to recall why it was that no application for leave to appeal against sentence was pursued. The appeal against conviction was dismissed by this Court on 30 September 2012 (see O'Grady v R [2012] NSWCCA 62). 7The applicant was advised by Ms Chalmers in February 2013 that there was likely merit in an application for leave to appeal against sentence on the basis of a so-called "Muldrock error" (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39). In Abdul v R [2013] NSWCCA 247 this Court explained in detail the background to, and the general nature of, such errors. 8Having received such advice from Ms Chalmers, the applicant completed an application for legal aid and thereafter the necessary documentation was obtained by Ms Chalmers, counsel briefed and submissions prepared. A Notice of application for leave to appeal was filed on 28 June 2013. 9The Crown has opposed the grant of an extension of time. THE FACTS 10The following summary is taken from the remarks on sentence. 11The victim, Brett Davis, lived with his partner in a secure apartment complex in Wolli Creek. On the night of 12 May 2008 the victim was at home alone when he heard a knock at the door. Upon opening it, he was confronted by three men who entered the premises. In the course of the attack which followed, the victim was rendered unconscious. He was subsequently hospitalised for a number of days, having suffered (inter alia) lacerations to the face and scalp (some of which required suturing) as well as a fractured right orbital floor. 12An inspection of the victim's apartment by police disclosed the presence of blood in and about the premises. Puha's fingerprints were found in various places inside. The right palm print and the left index fingerprint of the applicant were found on the interior of the door of the premises. 13Investigations led police to speak with Carter and Puha who were identified as two occupants of a stolen vehicle which was seen in and around the area of the victim's premises at the time of the commission of the offence. Police located a number of items identified as having been taken from the victim's premises within that stolen vehicle. 14When charged, Puha pleaded guilty and gave evidence for the Crown in the applicant's trial. His evidence, which the jury obviously accepted as accurate and truthful, was critical to the Crown case. 15Puha gave evidence that on the evening in question he was in the company of Carter and the applicant (to whom he referred as "Ace"). A substantial quantity of drugs and alcohol had been consumed before the trio "did a journey" which involved driving around for approximately 2 hours in the stolen vehicle. Their reason for doing so was connected to the fact that the applicant was said to have been in a "bad drug deal" and wanted to "rectify the situation with the dealer". The applicant told Puha that he wanted to "sort it out" with the dealer and that he wanted Puha there as "the muscle". 16After driving around for some time, the trio arrived in the vicinity of the victim's premises. They gained entry through the car park and then through the fire escape. The door leading from the fire escape into the residential section of the building was locked, but the applicant produced a screwdriver or similar implement which he used to try and force open the door. Carter and Puha were on the verge of abandoning the attempted entry when the applicant succeeded in getting the door open. 17All three of them then proceeded to the victim's apartment where they barged inside when the victim opened the door. The victim was pushed back onto a couch, and one of the three (whom the sentencing judge found was "probably" the applicant) demanded: "Where's the money? Where's the drugs?" 18The situation then erupted, with the victim becoming agitated and trying to fend off the three intruders. A significant assault ensued, which resulted in the victim's blood being splattered over his premises and the victim losing consciousness. Puha described the victim as "a mess". 19The applicant, Carter and Puha then commenced searching the premises, and randomly removed a number of objects including a television and a DVD player. They then drove away.

The findings of the sentencing judge 20The sentencing judge noted that the applicant was 23 years of age at the time of commission of the offence. There were only three prior matters on his criminal history although at the time of the offending he was on a bond pursuant to s. 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which had been imposed for an offence of shoplifting. 21A report from Dr Jacmon, psychologist, was before the sentencing judge. That report recorded that in July 2007 the applicant had witnessed the stabbing murder of his then partner, following which he commenced to use drugs heavily and suffered from post traumatic stress disorder. Dr Jacmon thought that the applicant would benefit from cognitive therapy. The subject offence had been committed about 10 months after the death of the applicant's former partner. The applicant had since formed another relationship and his new partner was pregnant with his child. 22In terms of the applicant's offending, her Honour found (commencing at ROS 6, paragraph [15]) that it was in the mid range. In reaching that finding her Honour had regard to the number of persons in company, the manner of entry into the victim's premises, the theft of property and the treatment of the victim. Although there were no long term consequences for the victim from the injuries he sustained, her Honour took into account the fact that the offending nevertheless involved a serious and unprovoked attack upon the victim in his own home. 23Her Honour also found that as the person who was motivated to seek out the victim, the applicant was the "orchestrator". This was in contrast to Carter, whom her Honour found to be a "follower". In this regard her Honour noted, in particular, that the applicant had been equipped with a screwdriver or some similar object which enabled him to force entry into the victim's premises. THE GROUND OF APPEAL Her Honour erred in her approach to the standard non-parole period legislation in light of the principles identified in Muldrock v The Queen (2011) 244 CLR 120 The approach of the sentencing judge 24At ROS 1, paragraph [2] her Honour said: "The offence carries a maximum available penalty of twentyfive years imprisonment and a standard nonparole period of seven years imprisonment. The standard nonparole period of seven years represents the nonparole period for an offence in the middle of the range of objective seriousness for an offence of this type. When determining the sentence for the offence, the Court is to set the standard nonparole period unless the Court determines that there are reasons for setting a nonparole period that is longer or shorter than a standard nonparole period. The relevant reasons are confined to those referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999". Submissions of the parties 25It was submitted on behalf of the applicant that the passage in [24] above reflected (inter alia) the adoption of a two stage approach to sentencing in which, having determined the standard non-parole period, her Honour considered whether there were reasons for departing from it. It was submitted that such an approach, although in accordance with the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, was erroneous in light of the decision in Muldrock. 26The Crown conceded that the sentencing judge had erred in the manner for which the applicant contended.

Consideration and conclusion 27The Crown's concession was a proper one. It is evident from the passage relied upon by the applicant that her Honour erred. Moreover, the error was clearly a material one (see Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 at [83] per Latham J). 28Accordingly, this ground is made out. THE APPLICATION TO EXTEND TIME 29 In Abdul (supra) this Court said (at [53]) "Accordingly, when considering an application for extension of time based on "Muldrock error", all relevant factors need to be considered - the length of the delay, the reasons for the delay, the interests of the community, the interests of the victim and whether, if an extension of time were refused, substantial injustice would result. This last factor will inevitably require an assessment of the strength of the proposed appeal although as Etchell made clear, that assessment can be carried out in a "more summary fashion" than would be done in an application for leave to appeal that was brought within time". 30In the present case the delay is well in excess of two years. Although that is less than some of the periods of delay considered by this Court in cases of so-called Muldrock error, it is nevertheless substantial. It is explained largely on the basis of a change in applicable sentencing principles following the decision in Muldrock. 31No Victim Impact Statement was tendered before her Honour on sentence and there is no other evidence which might suggest that an extension of time would be likely to give rise to added trauma for the victim. That said, such an order would offend the principle of finality. In terms of their effect upon the application for an extension of time, all of these matters are fairly evenly balanced. 32However for the reasons explained in Abdul, because a material error has been established it is necessary to assess the prospects of success of the application for leave to appeal. In doing so, the Court must consider whether any other sentence is warranted in law (Criminal Appeal Act 1912 (NSW) s. 6(3)).

Is a lesser sentence warranted in law?

Submissions of the parties 33In addition to the matters contained in the lengthy written submissions which were filed, counsel for the applicant emphasised three aspects of the applicant's subjective case which, it was submitted, supported the conclusion that some lesser sentence was warranted. 34The first was the applicant's age, he having been 23 years old at the time of the commission of the offence. 35The second was what was described as the applicant's insignificant criminal record. Counsel pointed out, in particular, that such record did not include any offences of violence and that the present offending should thus be regarded as being out of character. 36The third concerned the circumstances in which the applicant had witnessed the death of his former partner, and the post traumatic stress disorder and increased drug dependence which had resulted. It was submitted that these circumstances were the real genesis of the offending. 37Counsel for the Crown relied upon the circumstances of the offending and the fact that there was significant violence. In doing so, the Crown stressed that the offending was in the nature of a home invasion, and relied upon decisions of this Court in support of the submission that such offences must be treated seriously, representing as they do a breach of the fundamental entitlement of every citizen to feel safe in his or her own home. 38The Crown also submitted that the offending was aggravated by the fact that the applicant was subject to conditional liberty at the time. For all of these reasons, the Crown submitted that no lesser sentence was warranted. CONSIDERATION AND CONCLUSION 39In the course of submissions before this Court counsel for the applicant described the applicant's subjective case as "compelling". It is true that one of the three subjective matters which were the focus of counsel's submissions, namely the results of the applicant having seen his former partner killed, was a unique circumstance. However the remaining two matters relied upon by counsel, namely the applicant's age and his lack of prior criminal history, are the type of matters regularly considered by sentencing judges. I do not, in these circumstances, regard the applicant's subjective case as compelling. 40In any event, it is clear from her express references to those matters that her Honour took all of them into account on sentence. It is also noteworthy that there was no evidence which enabled her Honour to have regard to any expressed contrition or remorse on the part of the applicant. 41Even when full weight is given to the fact that the applicant had no history of violence, his offending in the present case involved the infliction of serious injuries to the victim which rendered him unconscious and which saw him admitted to hospital for several days. Moreover, there has been no challenge in this appeal to her Honour's findings (at ROS 6, paragraph [15]) that it was the applicant who was: (i)motivated to seek out the victim; (ii)able to identify the victim's premises; and (iii)equipped with a screwdriver or similar implement in order to force entry. 42It is apparent that these matters led her Honour to conclude (at ROS 6, paragraph [15]) that the applicant was the orchestrator of the offence, a finding which has also not been challenged. 43This Court has consistently said that offending of this kind should meet with condign punishment. For example, in R v Hayes [1984] 1 NSWLR 740 Street CJ, in the context of observations regarding the increase in the commission of the offence of break, enter and steal observed (at 742): "The invasion of people's homes and the plundering of their property is a social evil from which the community looks for protection to the law enforcement agencies and the criminal courts". 44In the same case, Lee J said (at 744): "The police and the criminal courts are all that a citizen has to look to protect him against the activities of criminals, and the courts have a duty to make clear that they recognise that, so far as our society is concerned, their prime responsibility is the protection of the community. (The sentencing judge's) remarks on sentence make quite clear that his Honour was not in doubt as to the court's responsibility. The community has the right to expect that the courts will use against crime the weapons which it has at its disposal, and that it will take stern measures in the face of repeated defiant criminal conduct involving breaking and entering." 45More recently, in Palijan v R [2010] NSWCCA 142 Barr AJ observed (at [22], McClellan CJ at CL and Hislop J agreeing): "It seems to me that a law-abiding member of the community is entitled to feel safe in his or her own home. There is to my mind something particularly repugnant about the forced entry of an offender into a house and violating the safety of that place by carrying out an attack". 46In my view, none of the matters advanced on behalf of the applicant support a conclusion that even if an extension of time was granted, substantial injustice arises out of the sentence imposed, or that some other sentence is warranted in law. ORDER 47I propose the following order: (i)The application for an extension of time is dismissed.

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