Regina v S R Kessey [2001] NSWCCA 469

New South Wales Court of Criminal Appeal

CITATION : Regina v S R Kessey [2001] NSWCCA 469 FILE NUMBER(S) : CCA 60617/01 HEARING DATE(S) : 23/11/01 JUDGMENT DATE : 23 November 2001

PARTIES : Regina (Appellant) Scott Richard Kessey (Respondent) JUDGMENT OF : Giles JA at 45; Sully J at 46; Kirby J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/41/0064; 00/11/0415 LOWER COURT JUDICIAL Norrish DCJ OFFICER :

COUNSEL : L M B Lamprati (Crown/Appellant) A C Haesler (Respondent) SOLICITORS : S E O'Connor (Crown/Appellant) South Eastern Aboriginal Legal Service (Respondent) CATCHWORDS : Crown Appeal - Findings of facts by sentencing Judge - Victim Impact Statement - Whether sentence manifestly inadequate LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act, 1999 R v Henry (1999) 46 NSWLR 346 R v Ponfield (1999) 48 NSWLR 327 R v Thomson & Houlton (2000) 49 NSWLR 383 Wong & Leung v The Queen [2001] HCA 64 R v Pont [2000] NSWCCA 419 R v Jurisic (1998) 45 NSWLR 209 Regina v Hayes (1987) 29 A Crim R 452 CASES CITED: R v Morrow [1999] NSWCCA 64 R v Holder [1983] 3 NSWLR 245 R v Allpass (1994) 72 A Crim R 561 Regina v Houghton [2000] NSWCCA 62 R v Kalache [2000] NSWCCA 2 R v Brewster (1998) 1 Cr App R 220 Deakin v The Queen (1984) 54 ALR 765 Bugmy v The Queen (1990) 169 CLR 525 DECISION : Appeal allowed.; Convictions quashed.; Respondent resentenced.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60617/01 GILES JA SULLY J KIRBY J

23 November 2001 REGINA v Scott Richard KESSEY

Judgment 1 KIRBY J:: This is a Crown appeal against a sentence imposed upon Mr Scott Kessey (the respondent) by his Honour Judge Norrish QC. The sentence was imposed on 6 July 2001.

The Charges 2 Mr Kessey, a man aged 24 years, was charged with two offences: First, that on 10 January 2000, he received certain property (a video recorder, a play station, video games, a wallet, a backpack and sunglasses) knowing that property to have been stolen (s188 Crimes Act, 1900). Secondly, that on 5 April 2001, he broke into premises at Bomaderry and there committed a serious indictable offence, stealing, in circumstances of aggravation, namely that he knew that there was a person inside the dwelling house (s112(2) Crimes Act, 1900). 3 The maximum penalty in respect of receiving is 10 years imprisonment. The maximum for aggravated break, enter and steal is 20 years imprisonment. After a careful and detailed review of the evidence and the authorities, his Honour imposed the following sentences. On the more serious offence, that of aggravated break, enter and steal, Mr Kessey was sentenced to 18 months imprisonment, to commence on 5 April 2001 (the date he went into custody) and to expire on 4 October 2002. His Honour determined that there should be a non-parole period of 8 months to expire on 4 December 2001. On the remaining charge of receiving, his Honour sentenced the respondent to a fixed term of 4 months imprisonment, which was to be concurrent, that is commencing on 5 April 2001 and expiring on 4 August 2001. 4 The Crown complains that the sentences were manifestly inadequate. It is also critical of a number of the findings made by the learned sentencing Judge. I will briefly state the circumstances giving rise to each charge, identifying the criticisms made of his Honour's findings.

The Receiving Charge 5 Mr Kessey lived in Bomaderry with his parents. On 10 January 2000, at about 3.15 pm, premises at Bomaderry were broken into by a young man, not the respondent. Property, which I have already identified, was stolen. The intruder was seen leaving the premises, and then meeting the respondent and his brother. The person who made these observations called out to the group. They then ran off. 6 Shortly after, at 4.30 pm, the same three individuals were in a motor vehicle which was stopped by police. There was a backpack in the rear, positioned between the respondent and the person who had broken into the premises. The stolen property was inside the backpack. The respondent had in his possession one of the stolen items, namely the sunglasses. 7 Mr Kessey pleaded guilty at the first available opportunity.

The Charge of Aggravated Break, Enter and Steal 8 At 2.00 am on 5 April 2001, Mr Kessey broke into another home at Bomaderry. The home was in darkness, as you would expect at that hour. Both the front and back doors were locked. Mr Kessey gained entry through a kitchen window, having first removed a flyscreen. He then went from room to room in search of valuables. 9 The premises were occupied by a young woman aged 25 years. She was a naval officer. She lived alone. She did not give evidence on sentence. The matter was dealt with by the tender of statements and a summary of the facts, prepared by the police officer in charge. The respondent also did not give evidence. 10 The victim's statement included the following description of the circumstances in which the respondent's presence came to her notice: "About 2.00 am in the morning I was awoken by the movement of the mattress on either side of my body. I opened my eyes and saw legs on either side of my body level with my hips. The figure had one foot on either side of my body on the mattress, straddling me. He was beginning to descend towards me and I thought he was going to kneel on me." 11 She immediately screamed. The respondent then jumped off the bed. He ran into the kitchen. The young woman ran behind him, continuing to scream. She turned on the kitchen light. She demanded an explanation. The respondent asked her "not to call the cops" and he provided a ridiculous excuse. The young woman left the room momentarily. The respondent immediately left the premises through the same kitchen window. 12 He took with him property belonging to the young woman, including some money kept in a jar ($80), a wallet with a small amount of cash and credit cards, and certain personal items, including videos. 13 The victim immediately phoned the police. The police plainly recognised the respondent from her description. They went to his home. He was having a shower. They spoke to his mother. It was clear that he had just arrived home. The clothes which had been described by the young woman were in his room, and were seized by the police. The respondent was then arrested and charged. Again he pleaded guilty at the first reasonable opportunity. 14 Two pieces of rope and socks were found at the home of the young woman, beside her bed. The Crown attached some importance to these items. The socks were worn by the respondent to avoid leaving fingerprints. The rope had been brought to the premises. Clearly both signalled some planning. In respect of the rope, his Honour said this: (page 11) "The Crown invites me to conclude that the prisoner had the rope for the purposes of tying up the victim. It is clear the prisoner brought the rope into the premises. It is clear that I can reasonably conclude that the prisoner was prepared if need be to use the rope if required to restrain some person who might have interrupted the commission of the offence. This clearly is a circumstance of aggravation." 15 His Honour thereafter made two findings about which complaint is made by the Crown. First, having noted that Mr Kessey did not tie up the victim, his Honour said this: (page 12) "In fact, it is quite clear on the evidence available to me that the prisoner had no intention to cause harm to the victim at any stage. He had ample opportunity to cause harm to the victim before she awoke. He had opportunity to restrain her or to in some way interfere with her after she woke up. 16 His Honour accepted that Mr Kessey's only concern was to escape. His Honour added: (page 12/13) "In my view even though there are a number of suspicions that might arise out of his possession of the rope I do not believe that I could conclude that a sinister purpose was afoot such as to significantly aggravate the facts as I have already found them to be, consistent with the plea of guilty that he has entered." 17 The Crown attacked these findings upon a number of bases. First, it was said that there was a contradiction between his Honour's acceptance that the respondent's purpose, in having the rope, was to restrain someone, if required, and his finding that Mr Kessey did not intend to use the rope for that purpose. 18 Secondly, the Crown complained, in effect, that his Honour's finding was not open, or that there was no rational basis upon which his Honour could have formed the view he did. The Crown's submission was in these terms: "The inference would appear to be that the socks were discarded so as to leave his hands free. When one adds the fact that the respondent got onto the bed of the sleeping victim with one leg on either side of her, which can hardly have been done by accident, the obvious inference is that the respondent had some physical restraint of the victim in mind." 19 I do not accept these criticisms of his Honour's remarks or reasoning. His Honour recognised the distinction between a purpose formulated in advance of a crime (where something is taken along because it may be useful), and the inference to be drawn from evidence as to what occurred at the scene. His Honour was not persuaded, beyond reasonable doubt, that once the crime was underway, Mr Kessey's purpose was to restrain the victim. 20 For my part, I find his Honour's conclusion unremarkable. Before drawing an inference adverse to the accused, his Honour was required to be satisfied beyond reasonable doubt. The circumstances described by the material placed before his Honour were, in some respects, bizarre. Many issues were left unresolved. No clear picture of the layout of the room, the height of the bed, the possible purpose of Mr Kessey in being where he was, emerges from the written material. Nor is the motive of Mr Kessey in restraining the victim at that point obvious. He had been in the house for some time. He had gone from room to room gathering what he could. He had already been through a number of drawers in the bedroom occupied by the victim. 21 Mr Kessey, moreover, provided an explanation for the rope and the socks. He said that, when he was startled, the rope fell out of his pocket. No doubt that explanation had its difficulties. However, the findings made by his Honour were certainly open to him.

The Victim Impact Statement 22 A Victim Impact Statement was placed before his Honour. It was a letter written by the victim herself. The victim was an accomplished and articulate young woman. She worked as a naval officer and pilot. She described her terror at the presence of the respondent. She quite naturally feared for her safety. She believed, reasonably in my view, that there was a chance that she would be raped. The episode has shaken her confidence. It has affected her work as a pilot. It has affected her sleep. She has ceased to live alone. She now shares accommodation with another woman. 23 His Honour accepted this evidence, acknowledging that it was uncontradicted. He described the statement as "an eloquent account" of the effects upon the victim. His remarks included the following statement: "The effect upon her has been great." 24 His Honour added these words, to which the Crown takes exception: (page 9/10) "... I do not believe in all the circumstances of the matter that the prisoner had a reasonable expectation that his conduct would have caused the results set out in the victim impact statement." 25 The Crown submits that such an observation was irrelevant, or alternatively, was unjustified, since the impacts described by the victim were predictable – the affront occasioned by the violation of her privacy; the fear of rape or worse, occasioned by the presence of an unknown male, in darkness, in her bedroom, in her home, late at night; the adverse effects upon her confidence, and upon her employment. 26 The cases make it plain that the effect upon the victim is relevant. It is an index of the gravity of the crime (R v Henry (1999) 46 NSWLR 346 at 366, para 85, per Spigelman CJ; R v Ponfield (1999) 48 NSWLR 327, per Grove J at 338). However, the subjective appreciation of the perpetrator is also relevant. A crime may have unexpected consequences. Here, I believe that it was predictable that the crime was likely to seriously erode the victim's confidence, and by this means affect her employment. The detail may have been unforeseeable. But that does not make the consequences unexpected. 27 Before moving to the subjective case for the respondent, I should mention two aspects relevant to sentencing, both identified by his Honour. The first is that Mr Kessey pleaded guilty to each charge at the first available opportunity. His Honour determined that the discount on the sentence that may otherwise be appropriate should be 25% (R v Thomson & Houlton (2000) 49 NSWLR 383). 28 Secondly, the respondent was on bail at the time he committed the second offence, the aggravated break and enter. Indeed, shortly before that offence he had been committed for trial. This was a circumstance of aggravation.

The Subjective Case for the Respondent 29 Mr Kessey had three previous convictions in the Nowra Local Court. On two occasions he was convicted of having goods in custody, reasonably suspected of having been stolen, and one occasion of entering enclosed lands without lawful excuse. In respect of each offence he was fined. He has not previously been in custody. 30 Mr Kessey was examined by Dr Jonathon Carne, a forensic psychiatrist, and Ms Elizabeth Kusch, a psychologist. Reports from Dr Carne and Ms Kusch were placed before his Honour. A Pre-Sentence Report was also prepared by the Probation and Parole Service. 31 The picture of Mr Kessey which emerged from each of these sources was broadly the same. He had a normal childhood. He has above average intelligence. He was not suffering from any mental abnormality. He had, from early adolescence, abused marihuana and alcohol. That abuse had affected his schooling. It has also affected his employment, which had been sporadic. Recommendations were made by all concerned that he have drug and alcohol counselling, and that he be supervised.

Was the Sentence Inadequate? 32 I am not persuaded that his Honour's remarks or reasoning betray error, with the exception (which I regard as minor) of the inference drawn by his Honour as to Mr Kessey's appreciation of the consequences for the victim. However, can it be said, in the sense recently indicated by the High Court in Wong and Leung v The Queen [2001] HCA 64 (15 November 2001), that the sentence imposed by his Honour was manifestly inadequate? That is the issue which has substantially occupied the time of this hearing. 33 The principles which should guide this Court on a Crown appeal have been recently restated by the Court of Criminal Appeal in R v Pont [2000] NSWCCA 419. They are conveniently summarised by Greg James J (with whom Beazley JA and Wood CJ at CL agreed). The power to intervene is exceptional. The Court must recognise that a range of sentences might be appropriate in any case, and that Judges might legitimately differ in philosophy, approach and result (Spigelman CJ in R v Jurisic (1998) 45 NSWLR 209; and Kirby P in Regina v Hayes (1987) 29 A Crim R 452). The Crown must show that the sentence, in its duration or nature, is so far outside the permissible range of the exercise of a proper discretion as to require the intervention by this Court, at least in the absence of matters going to the exercise of the Court's well known discretion to refrain from intervening (see eg R v Morrow [1999] NSWCCA 64; R v Holder [1983] 3 NSWLR 245 at 225-226; Hayes (supra); R v Allpass (1994) 72 A Crim R 561; Regina v Houghton [2000] NSWCCA 62; R v Kalache [2000] NSWCCA 2). 34 The Crown complains that a sentence of 18 months, with a non parole period of 8 months, does not reflect the objective seriousness of the crime. It does not serve the objectives of deterrence, including personal deterrence. 35 There can be no question that the offence of aggravated break, enter and steal was, indeed, serious. In R v Brewster (1998) 1 Cr App R 220, Lord Bingham CJ said this, in the context of the English equivalent of s112: (at 225) "Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. .... The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity." 36 His Lordship added: "Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night ..." 37 Here, as the learned sentencing Judge acknowledged, there were a number of matters of aggravation (cf R v Ponfield (supra), per Grove J at 337/338), as well as the complication that his Honour was sentencing for two offences, which were unconnected. First, the more serious offence of aggravated break and enter was committed whilst Mr Kessey was on bail. Secondly, that offence involved a degree of planning (the socks, the rope). Thirdly, there was significant trauma to the victim, as you would expect where the house broken into was occupied. 38 The sentence, I believe, was manifestly inadequate. An indication of that inadequacy was the non parole period of 8 months. A finding of special circumstances authorised the fixing of a non parole period less than three-quarters of the term of the sentence (s44(2) Crimes (Sentencing Procedure) Act, 1999). However, the non parole period should still be appropriate. It must reflect "the minimum time that a judge determines justice requires that (the offender) must serve having regard to all the circumstances of the offence" (Deakin v The Queen (1984) 54 ALR 765 at 766; Bugmy v The Queen (1990) 169 CLR 525, per Dawson, Toohey, Gaudron JJ at 536). Here, a non parole period of 8 months does not, in my view, reflect the minimum time that justice required should be served in the circumstances, nor does the overall sentence reflect the appropriate time for the totality of the criminality which his Honour was required to deal with.

Appropriate Sentence 39 It is my view, therefore, that the appeal against sentence should be allowed. Where a Crown appeal has been successful, the sentence substituted by the appellate Court should be fixed upon a conservative basis. 40 In the circumstances of this case, a number of matters are relevant. The sentence imposed should reflect the early pleas of guilty to each charge, as acknowledged by Norrish DCJ. I will adopt the same discount, namely 25%. 41 Further, certain material has been placed before this Court describing the respondent's circumstances since entering custody. That material suggests both contrition and a recognition of the pernicious influence of drugs and alcohol in his life. That recognition augers well for his rehabilitation. 42 I believe that it is appropriate, and for the reasons given by Norrish DCJ, that I too should find special circumstances. The respondent will benefit from further drug counselling and rehabilitation, making it appropriate to fix a greater than usual period of supervision. 43 Approaching the matter applying the principle of totality, I believe the appropriate sentence in respect of the offences overall is a term of imprisonment of 2 years 3 months, with a non parole period of 1 year 3 months. In respect of the offence of receiving, since the date nominated for the expiry of that sentence, 4 August 2001, has now passed, as a matter of discretion I would not disturb on re-sentencing the sentence which his Honour imposed in respect of that matter.

Orders 44 The orders I propose therefore are as follows:

1. The appeal is allowed.

2. The sentences imposed by Norrish DCJ are set aside.

3. In lieu thereof, the respondent should be sentenced on Count 1 to a term of imprisonment of 2 years 3 months to commence on 5 April 2001 and to expire on 4 July 2003. The non parole period of 1 year and 3 months should expire on 4 July 2002.

4. In respect of Count 2, I would reimpose the sentence originally imposed by Norrish DCJ, that is, that the respondent should be sentenced to a fixed term of imprisonment of 4 months to commence on 5 April 2001 and to expire on 4 August 2001. 45 GILES JA: I agree. 46 SULLY J: I also agree. 47 GILES JA: The orders of the Court will be as proposed by Kirby J. **********

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