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Kurt John Drayton, the appellant, is a 32 year-old man with a significant intellectual disability. He and his then partner came to Canberra to address their drug addiction through the Opiate Treatment Service. The relationship was a volatile one, however, and on 23 June 2012, Mr Drayton and his partner had a fight. As a result, Mr Drayton became upset and left where they were living.

SUBJECTIVE CIRCUMSTANCES

15. Mr Drayton was the only child of his parents, but because his violent mother left the family home, he was raised by his paternal grandmother in New South Wales. His father, a boilermaker, had no criminal record and Mr Drayton was fond of his father. He went to school in New South Wales until Year 8, but failed to achieve, as he was affected by Attention Deficit Hyperactivity Disorder (ADHD) and, no doubt, by the intellectual disability with which he has been diagnosed by Mr Tom Sutton, clinical psychologist, who examined him for the sentencing proceedings.

16. Apart from a few short-term casual labouring positions, Mr Drayton has not had any employment. He drank a lot of alcohol in his early years, but more recently rarely drinks alcohol. He has, however, an extensive poly-drug using history from age 13, when he would consume up to nine Dexamphetamine tablets a day, medication he started consuming when it was prescribed for his ADHD. He started using heroin when he was 17, and this addiction went out of control in 2012, when he and his partner decided to enter the Suboxone Program in Canberra, which they did on 18 July 2012.

17. Mr Drayton has some physical health problems, including poor oral health, back pain and skin problems.

18. He has been assessed by Mr Sutton as having substantial intellectual challenges. Mr Sutton reported that his literacy and written arithmetic level are equivalent to “third class primary levels” and his reasoning is at borderline between deficient and low average levels.

19. His memory is worse than expected, between 0.1% and 0.3% of the normative group for his age. Mr Sutton commented “[i]f he were elderly he would be classified as having dementia, similar to Alzheimer’s Disease.”

20. Mr Sutton continued: His current levels of intellectual and memory functioning means he is incapable of safe independent functioning. They lessen any degree of internally motivated rehabilitation capacity. Any rehabilitation and behavioural changes require external structures to be in place”

21. Mr Sutton did say, however, that Mr Drayton “can understand the legality and social appropriateness or otherwise of his behaviour.”

22. Mr Drayton has a long and depressing criminal history in New South Wales. These include about 90 offences since 1997. Although many are traffic matters, there are also a number of dishonesty, burglary and drug offences. He has been sentenced to prison on a number of occasions. His most recent offences, apart from the ones the subject of this appeal, were committed in 2011 and 2012. THE APPEAL

23. Mr Drayton argued on the appeal that the parole period was too short for him to be assisted in the community to stop offending. He suggested that the non-parole period be reduced and the parole period be extended. He also said, in particular, that in the past he had found the risk of returning to custody during his parole period an effective deterrent to re-offending. This, he suggested, made the parole period more important and effective.

24. He said that he had been on parole in the past on a number of occasions, a contention supported by his criminal record. He seemed to suggest that this was of benefit to him, as it should be. It allowed him to access services that would have helped. He suggested that he had only breached a parole order a couple of times, an assertion that could not be confirmed or otherwise from the material in the appeal papers.

25. There is no doubt that Mr Drayton will need assistance in the community if he is to avoid the criminal conduct that has been such a feature of his life to date. Such assistance, however, will have to extend beyond any parole period that could reasonably be set, given his personal circumstances.

26. While a longer period on parole may be of benefit to Mr Drayton, the offences for which he was sentenced were serious and there is a need to have that reflected in the period of imprisonment that he must actually serve. It would be quite wrong to increase the head sentence so as to provide a longer parole period. It must also be accepted that, whilst some rehabilitation can be achieved in custody, there are a number of challenges to that, not the least being that the structured environment of prison is not the place to learn to be able to conduct oneself in the community while having to address the stresses and temptation that come with such liberty.

27. Nevertheless, the principles surround the setting of a non-parole period and the purpose of parole have been set out from time to time by the High Court and are well known. In Bugmy v The Queen (1990) 169 CLR 525 at 531-2, Mason CJ and McHugh J, though dissenting in the result, said: [T]he considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function. A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v The Queen [No. 2], whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment. In fixing a minimum term, a sentencing judge is bound to give close attention to the danger which the offender presents to the community. Naturally, as the length of the minimum term under consideration increases, so does the difficulty of making satisfactory predictions about the future progress of the offender and the danger he or she would present to the community. But that difficulty does not relieve the judge of his or her responsibility to take account of the need to protect the community. Necessarily the judge will be influenced by an assessment of the material before the court as to the prisoner's prospects of rehabilitation. If the judge's assessment of those prospects is that they are minimal or bleak, a minimum term should be fixed in the light of that assessment, along with the other factors relevant to the fixing of the minimum term. [footnotes omitted]

28. To the same effect, Deane, Dawson and Toohey JJ said in R v Shrestha (1991) 173 CLR 48 at 67-8: The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody. In some cases, of course, those considerations may be so compelling at the time of sentencing that, consistently with the need for punishment and deterrence, any sentence of imprisonment should be suspended or deferred upon entry into a good behaviour bond or recognizance, with the result that imprisonment may never take place. In most cases, however, a suspension or deferral of the appropriate term of imprisonment will not be justified. In such an event and subject to some exceptions where a prisoner is automatically entitled to release on parole at the expiry of the non-parole period upon conditions then determined by the parole authority, the parole system allows for a review of the offender's case after he has actually served a significant part of a custodial sentence, for the purpose of deciding whether he should be released on parole at that stage. At the time of that review, the reviewing authority should have available to it up-to-date information about the prisoner's conduct while in custody, his current attitudes, his present circumstances and the prospects of his rehabilitation in the community if he be released on parole. Obviously, a reviewing authority with that up-to-date information should be in a better position to determine whether it is appropriate that the prisoner be then released on parole than the sentencing judge would have been at the time, often years before, when the head sentence of imprisonment was imposed and a minimum non-parole period was fixed. Thus, and subject to the above- mentioned exceptions, it is a central aspect of the working of parole systems in this country that the function performed by the sentencing judge in relation to parole is to determine whether it is appropriate or inappropriate that the convicted person be eligible to be considered by the parole authority for release on parole at some future time. [footnotes omitted]

29. Finally, and more recently, the High Court said in Muldrock v The Queen (2011) 244 CLR 120 at 140; [57]: [I]t was an error to determine the structure of the sentence upon a view that the appellant would benefit from treatment while in full-time custody. Full-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody. Furthermore, the availability of rehabilitative programs within prisons is a matter for executive determination. There can be no confident prediction that an offender will be accepted into a program or that the program will continue to be offered during the term of the sentence.

30. In order to succeed in his appeal, Mr Drayton must show that the non-parole period is manifestly excessive, or that, in fixing that period, the learned sentencing Judge fell into a specific error. He has not been able to point to any error of that kind.

31. While it is acknowledged by the Crown that the relationship of the non-parole period to the head sentence is somewhat higher than the range of such proportion that is commonly the case in this Territory, it cannot be described as manifestly excessive.

32. This court is, of course, a court for remedying error and must not simply substitute its own view were that view to be different to that of the learned sentencing Judge. Applying these principles, and having regard to both the rather limited prospects that are expressed about Mr Drayton’s likely rehabilitation and the seriousness of the offences, it does not seem to us that the length of the non-parole period was manifestly excessive. No other error has been shown in the setting of that period.

33. We must dismiss the appeal. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 15 November 2013

For the Appellant: In person

Counsel for the Respondent: Mr J White

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 31 October 2013

Date of judgment: 31 October 2013

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