Kerr v Regina

Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 Drug Court Act 1998

AJO v Regina [2008] NSWCCA 28 Kerr v Regina [2008] NSWCCA 44 CASES CITED : Pearce v The Queen (1998) 194 CLR 610 R v Doan (2000) 50 NSWLR 115 R v El Masri [2005] NSWCCA 167 Re Attorney-General's application (No 2 of 2002) (2002) 137 A Crim R 196

PARTIES: Michael Kerr (Applicant) Regina (Respondent)

COUNSEL: In person (Appellant) Mr P Miller (Respondent)

LOWER COURT JURISDICTION: Drug Court of New South Wales

LOWER COURT JUDICIAL OFFICER: Senior Judge Dive (initial sentence); Judge Barnett (final sentence)

LOWER COURT DATE OF DECISION: 7 March 2007 (initial sentence); 15 June 2007 (final sentence)

• 1 - IN THE COURT OF CRIMINAL APPEAL CCA No. 2007/3096

Beazley JA, Johnson J, McCallum J

12 June 2008 Michael KERR v REGINA Judgment 1 Beazley JA: I agree with McCallum J. 2 Johnson J: I agree with McCallum J. 3 McCallum J: This appeal came before the Court as an appeal against conviction and sentence. At the outset of the hearing, however, the appellant, who was not legally represented, stated that he did not wish to proceed with the appeal against conviction because he had been unable to obtain the paperwork he needed for the purpose of that part of his appeal. The Court enquired whether the appellant wished to seek an adjournment of the hearing of the appeal. The appellant did not seek an adjournment and the appeal against conviction was abandoned. The appellant asked the Court to proceed with the hearing as listed because he holds a fear that his ex-partner is about to remove his son from Australia. He wanted to be released from custody as soon as possible so that he could pursue proceedings commenced in the Family Court to prevent that from occurring. The appellant's anxiety about that issue is understandable but it is not, of course, relevant to the question of error in the sentence. 4 The appellant appeared for initial sentence in the Drug Court of New South Wales before Senior Judge Dive on 7 March 2007, having entered pleas of guilty to eleven substantive offences and two offences of failure to appear. All of those offences had been referred from the Local Court so that the jurisdictional limit on sentence available to the Drug Court was that applicable to the Local Court: s 24 of the Drug Court Act 1998; ss 267, 268 of the Criminal Procedure Act 1986. The appellant was on parole at the time all of the offences were committed.

Facts of offences 5 The charges to which the appellant pleaded guilty may broadly be classified into two groups. The first group of charges arose out of the appellant's arrest on 31 October 2006 when he was stopped by police whilst he was driving a 2005 Toyota Landcruiser utility that had been reported stolen. In respect of that event, he was charged with receiving and also with knowingly driving a stolen conveyance. 6 Police then went with the appellant to Mittagong Caravan Park where they discovered that the caravan in which the appellant was living was also stolen. There was a second charge of receiving in respect of the caravan. 7 The appellant was granted bail in respect of those three offences on 31 October 2006. 8 The caravan was seized by police and collected by its owners. The owners identified two ambulance field equipment bags stored under the sink in the caravan that they said did not belong to them. It transpired that those bags had also been reported stolen. When the appellant attended Bowral Police Station to collect his own possessions that had been left in the caravan, he was arrested and agreed to participate in a record of interview in respect of the ambulance property. He was charged with possession of unlawfully obtained goods. He was then released from custody but was arrested later that day in possession of a stolen camera and a jerry can of stolen petrol. He was charged with a further charge of possession of unlawfully obtained goods in respect of the petrol and a charge of larceny in respect of the camera. 9 He was granted bail in respect of the further charges on 5 November 2006. 10 The two charges of failure to appear arose from the appellant's failure to appear at Moss Vale Local Court on 7 November 2006, apparently in respect of the two separate bail undertakings referred to above. He remained at large until his arrest in relation to the second set of charges. 11 The second group of charges arose on 17 December 2006 when police commenced a chase of an unregistered vehicle, a red Ford Falcon, being driven by the appellant. The car was chased from Liverpool through to Prestons where it was eventually stopped. It had not been reported stolen at that stage but was later identified by the owner as having been stolen from his wrecking yard whilst he was away on holiday. Arising out of that incident, the appellant was charged with possession of unlawfully obtained goods (in respect of a quantity of tools and other items including a camera located in the car), drive whilst disqualified, drive in a manner dangerous to the public, larceny in respect of some garden tools located in the car and one charge of take and drive conveyance in respect of the car itself.

Initial sentence 12 The initial sentencing judge noted that the appellant had been in and out of gaol many times and said that he was going to impose lengthy terms of imprisonment which would be suspended to give the appellant an opportunity to take part in a Drug Court treatment plan.

13 His Honour noted the pleas of guilty and noted that, although pleas of guilty had not been entered previously, there was still a utilitarian value to the pleas. He noted that the appellant had a lengthy criminal history and that the offences were committed whilst the appellant was on parole. He also noted, as to the later offences, that they were committed whilst the appellant was on bail for the earlier offences and that the last offences were committed whilst the appellant was at large, having not answered his bail. 14 His Honour noted that the appellant had a motivation to succeed on a Drug Court programme, because he wished to re-establish some contact with his son. 15 The sentences imposed by the initial sentencing judge were as follows: Charge Maximum penalty Penalty imposed Receiving (Landcruiser) Jurisdictional limit of two years imprisonment: s 267 of the Criminal Procedure Act 1986 Two years imprisonment Receiving (caravan) Jurisdictional limit of two years imprisonment: s 267 of the Criminal Procedure Act 1986 Eighteen months imprisonment Knowingly drive stolen conveyance (Landcruiser) Jurisdictional limit of two years imprisonment: s 268 of the Criminal Procedure Act 1986 Twelve months imprisonment Fail to appear Same maximum as for the offences for which there was a failure to appear Six months imprisonment Unlawfully obtained goods (ambulance field kit bags) Six months imprisonment Three months imprisonment Unlawfully obtained goods (petrol) Six months imprisonment Fourteen days imprisonment Larceny (camera) Jurisdictional limit of two years imprisonment: s 268 of the Criminal Procedure Act 1986 Six months imprisonment Fail to appear Same maximum as for the offences for which there was a failure to appear Six months imprisonment Unlawfully obtained goods (tools, petrol cans, binoculars, coins, camera) Six months imprisonment Three months imprisonment Drive whilst disqualified Two years imprisonment (2nd or subsequent offence) Six months imprisonment Dangerous driving Twelve months imprisonment (2nd or subsequent offence) Nine months imprisonment Larceny (hedge cutters, edge trimmers, blowers) Jurisdictional limit of two years imprisonment: s 268 of the Criminal Procedure Act 1986 Six months imprisonment Take and drive conveyance (red Ford Falcon) Jurisdictional limit of two years imprisonment: s 268 of the Criminal Procedure Act 1986 Twelve months imprisonment

16 The longest term for the first group of sentences was two years imposed in respect of the charge of receiving the Landcruiser. The sentences imposed in respect of the second group of charges were expressed to be consecutive on that sentence. Accordingly, the effect of the initial sentences was that there was a total term of three years. No non-parole period was set at that stage. The sentencing judge noted that the appellant had, at that stage, spent eighty-seven days in custody and that, if he had to be sent back to gaol, the sentence would be backdated to make allowance for those days. 17 The initial sentences were suspended upon the appellant's agreeing to enter into a Drug Court treatment plan under which he was required to attend the William Booth Centre. 18 The appellant left William Booth the morning after the day he arrived. In a letter to the Drug Court, he identified his reason for doing so as being that he had not appreciated, prior to entering into the programme, the level of religious content that the programme would involve. He complained that he had been required to undertake Christian instruction that was inconsistent with his own Catholic upbringing. However, he did not return to the Drug Court immediately. In due course a warrant was issued for his arrest and, after that occurred, he surrendered himself to police on 12 March 2007.

19 On 11 April 2007 the appellant entered into a varied treatment plan which required him to go to Adele House. However, he fled from Central Railway Station before ever reaching the premises of that institution at Coffs Harbour. On 16 April 2007, the drug programme was terminated and a bench warrant issued for his arrest. The warrant was executed on 3 May 2007.

Final sentence 20 The appellant appeared for final sentence before Judge Barnett on 15 June 2007. Judge Barnett expressly relied on the matters taken into account at the initial sentence hearing. As to the appellant's participation in the Drug Court programme, the Judge observed that other Drug Court participants have also found the religious content of the William Booth programme difficult but noted that the appellant had not then returned to Court as required by his undertaking to the Court. 21 There was evidence before Judge Barnett from a psychologist which indicated that the appellant had been diagnosed with bi-polar disorder and schizophrenia three years earlier. In the light of that evidence, Judge Barnett considered whether to make a finding of special circumstances to allow for rehabilitation but declined to do so on the basis that there did not appear to be any real desire on the part of the appellant to undertake such rehabilitation. His Honour found that the appellant had simply used the treatment plans as a means of getting out of gaol. 22 In those circumstances, Judge Barnett was not prepared to find special circumstances but, in view of the mental health issues and the need to find a sentence that was just and appropriate, decided not to accumulate any of the sentences. As a consequence, the total term was reduced from three years to two years imprisonment. 23 In his remarks on sentence, the Judge stated, "the head sentence will continue to be number one on the list. There will be a non-parole period of 18 months and a total term of 2 years". The reference to number one on the list appears to have been a reference to the charge of receiving in respect of the Landcruiser. His Honour otherwise confirmed all of the sentences imposed at initial sentence. 24 The sentences were fixed to commence from 14 January 2007 which was stated to be an agreed date taking into account the eighty-seven days of pre-programme custody noted at the initial sentence and, in addition, twenty-one days sanctions and forty-four days bail refused, making a total of one hundred and fifty-two days.

Grounds identified by the appellant 25 The Notice of Appeal filed by the appellant did not identify any grounds of appeal in respect of the appeal against sentence. During the hearing, the appellant advanced the following arguments:

a) he complained that the judge that imposed the initial sentence did not give due consideration to the mental health report and that the appellant should have had an opportunity to undertake a treatment plan at Morisset, which treats people with both a drug addiction and a mental health diagnosis. Evidence adduced by the appellant disclosed that Adele House does not accept dual diagnosis patients;

b) the appellant contended that the sentence should have dated from the date when bail was refused on 17 December 2006 rather than from the date identified in the Remarks on Sentence of Judge Barnett on 15 June 2007;

c) the appellant said that he was given no discount for his plea of guilty. 26 The appellant noted that his current release date is 16 July 2008 and said that even if he had been given as little as ten percent by way of discount for the utilitarian value of his plea, he would be entitled to be released now. 27 The first ground relates to the terms of the treatment programme, not the initial sentence imposed by Senior Judge Dive or the final sentence imposed by Judge Barnett. There is nothing to suggest that the programme was not voluntarily entered into by the appellant. As noted in the Remarks on Sentence of Judge Barnett, the appellant did not endeavour to comply with the treatment plan at all, absconding each time without spending more than a night in either programme. 28 As to the ground relating to the date from which the sentence should have run, the commencement date was an agreed date and the calculation of the date one hundred and fifty two days before the day of the sentence hearing was correct. The appellant's argument ignored the fact that, after bail was refused, he spent some time at large each time he absconded from his treatment programmes. 29 As to the question of there being no discount for the plea of guilty, there is some force in the appellant's complaint. In the sentencing remarks at the initial sentence hearing, Senior Judge Dive stated that there was "most clearly a utilitarian value" to the pleas of guilty. Having made that finding, His Honour imposed a total term of two years where that was the jurisdictional limit on penalty for that offence: s 267 of the Criminal Procedure Act; R v El Masri [2005] NSWCCA 167 at [30]. 30 The position is effectively the same in respect of the second charge of receiving (relating to the caravan) in respect of which, at final sentence, a fixed term of eighteen months was imposed, being the same as the non-parole period imposed in respect of the first charge, in circumstances where there was no finding of special circumstances such as to warrant adjusting the normal ratio. 31 In R v Doan (2000) 50 NSWLR 115 at [35], this Court drew a distinction between a jurisdictional maximum and a maximum penalty and stated that, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that Court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The jurisdictional limit is not to be regarded as some form of maximum penalty reserved for the worst possible case: Doan at [35]; approved in Re Attorney-General's application (No 2 of 2002) (2002) 137 A Crim R 196 at [27]. 32 In the present case, it is not possible to ascertain whether the imposition of a sentence that was the jurisdictional maximum reflects a failure to give any discount for the utilitarian value of the plea. The sentencing judge made no express finding as to the objective seriousness of each individual offence, although it is implicit in his adoption of the remarks of the initial sentencing judge that he regarded them as warranting "lengthy terms of imprisonment".

33 To complicate the question, the approach taken in the present case is difficult to reconcile with the requirements of Pearce v The Queen (1998) 194 CLR 610. The sentences imposed in the present case are more consistent with the custom before the decision of the High Court in that case, when, where there were multiple offences, the Court would select the most serious and use it as the vehicle for reflecting the totality of the offender's criminality, imposing concurrent sentences in respect of the remaining offences: see Kerr v Regina [2008] NSWCCA 44 at [32]. 34 Following Pearce, a sentencing judge is now required to fix "an appropriate sentence" for each offence before considering questions of accumulation, concurrence or totality. The statement made by the sentencing judge referred to above that the "head sentence" would continue to be the first charge on the list tends to confirm that His Honour did not strictly apply the approach required by Pearce. The imposition of a sentence in respect of the first charge at the jurisdictional maximum may reflect a failure to apply Pearce rather than a failure to give a discount for the utilitarian value of the plea. 35 In any event, this Court would not quash the sentence unless it is satisfied that a less severe sentence is warranted in law: s6(3) of the Criminal Appeal Act 1912. 36 In the present case, whether or not the approach of the sentencing judge was wrong, it cannot be said that the result was wrong. Having regard to the number of offences, the period over which they were committed and the fact that the appellant was on parole or bail when they were committed, no lesser sentence than a total term of imprisonment for two years with a non-parole period of eighteen months was warranted in law. In those circumstances, there is no requirement for the Court to restructure the sentences to achieve the same overall result: cf AJO v Regina [2008] NSWCCA 28 at [33]; Kerr at [35]. 37 I note the abandonment of appeal against conviction. The order I propose is that leave to appeal against sentence be granted but that the appeal be dismissed. **********

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