The application
18Counsel for the applicant, Mr White, argued three grounds of appeal, the third being that the aggregate sentence is manifestly excessive. In argument on that third ground an issue was raised which persuades me that this court should intervene and re-sentence the applicant. I shall return to this but, given that conclusion, it is sufficient to refer to the other two grounds only briefly.
19The first ground is that the indicative sentence for one of the related matters dealt with under s 166 of the Criminal Procedure Act exceeds the maximum sentence available. This was the offence of stealing the Holden R8, for which his Honour indicated a sentence of 2 years and 3 months. His Honour's approach to that sentence was governed by s 168(3) of the Criminal Procedure Act, which provides:
"(3) In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court."
The effect of s 267(2) of the Act is that the maximum sentence the Local Court could have imposed for that offence was imprisonment for 2 years.
20In this court the Crown prosecutor conceded the error, but submitted that it was not material because it made no difference to the aggregate sentence imposed. As this court is to re-sentence, there is no need to resolve that issue.
21The second ground relates to a finding his Honour made concerning the two related offences of possessing firearms. The applicant told the psychologist that he had them because he had been threatened by someone, that he knew they were not in working order, but he wanted them so as to be able to threaten people for his self-protection. He said that the bullets came with the firearms, and he had no intention of repairing them so as to be able to fire them. His Honour accepted that account, but was not persuaded "on the balance of probabilities that they were totally unconnected with the supply of prohibited drugs" by the applicant. It is that finding which is challenged by this ground.
22It seems to me that that finding was open but, again, it is unnecessary to resolve the issue. For the purpose of re-sentence I also accept that the applicant knew that the weapons were not in working order and kept them for his own protection. However, it is most likely that his fear of being threatened arose from the illicit drug milieu in which he moved at the time.
23Mr White submitted that the aggregate sentence is manifestly excessive, as are each of the indicative sentences. The thrust of this ground is his argument, which I accept, that his Honour failed to give appropriate weight to the origin of the applicant's drug addiction and his achievement in defeating it in recent years. In the event, this was treated by the parties as a discrete issue to which argument was directed. My finding that his Honour did fall into error in that respect enlivens this court's discretion to intervene and re-sentence the applicant. A general ground of manifest excess need not be determined.
24It is clear, and his Honour accepted, that the applicant's pattern of offending had its origin in his disturbed background and the drug addiction attributable to it. It is notable that that addiction commenced at the age of 9 or 10, an age at which his use of drugs could hardly be classified as a personal choice. There then ensued a period of consistent drug abuse and associated criminal activity. Yet after his flight to Queensland at the end of 2011, he defeated his drug addiction through his own efforts, has remained drug free, and appears to be on the path to rehabilitation.
25Mr White referred to the judgment of Wood CJ at CL in R v Henry [1999] NSWCCA 111, 46 NSWLR 346. The Chief Judge dealt with the relevance of drug addiction to sentence in a well-known passage at [273] (397-8). After dealing with the principles governing the bearing of addiction upon the offender's culpability for the crime in question, his Honour continued:
"... (c) It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:
(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword (eg Lewis Court of Criminal Appeal New South Wales 1 July 1992);
(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf Hodge Court of Criminal Appeal New South Wales 2 November 1993; and Talbot); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;
(iii) justify special consideration in the case of offenders judged to be at the "cross roads": Osenkowski(19882) 5 A Crim R 394."
26Simpson J agreed with Wood CJ at CL on this issue (at [348]), adding some observations of her own. At [336] (410), her Honour noted that in some cases drug addiction may have its origins "in arrogance, in an antipathetical attitude to the laws of society, or in weakness of character." She continued:
"In other cases, I have no doubt, it has its origins in social disadvantage, poverty, emotional, financial, or social deprivation, poor educational achievement, unemployment, and the despair and loss of self-worth that can result from these circumstances or any combination of them. In this court one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the court, is very young, and sometimes the precipitating events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease."
27Later in her judgment, her Honour said at [344] (412):
"Where circumstances such as those I have mentioned (or others equally deserving of compassion) have been the foundation for the drug addiction, and part of the causal chain leading to the commission of crime, then it would be appropriate, in my view, for the rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case. In an appropriate case, rehabilitation might outweigh other sentencing factors. In order for those circumstances to provide a reason for reduction of sentence, however, there would need to be strong evidence of real progress towards actual rehabilitation. I would not wish to be understood to be saying other than that leniency of the kind to which I refer depends heavily upon demonstrated (as distinct from theoretical) rehabilitative prospects."
28These observations are apposite to the present case. True it is, as the Crown prosecutor in this court pointed out, that the applicant stood for sentence for a persistent course of criminal activity, against the background of an unfavourable criminal history. Further offences were taken into account when he was sentenced for both of the principal offences. Nevertheless, there was force in the submissions of counsel appearing for him in the sentence proceedings that he was "a classic product" of his childhood and, at the time of sentence, was "at a cross-roads."
29It does not appear from his remarks on sentence that his Honour approached the matter in this way. This is a case in which the applicant was entitled to a measure of leniency for the reasons articulated by Simpson J in the passage from her judgment in Henry which I have quoted in [27] above. Equally, it is a case in which, to adopt her Honour's words in the passage last cited, it was "appropriate...for the rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case." There was also "strong evidence of real progress towards actual rehabilitation." That said, while I myself might assess his prospects of rehabilitation as better than "somewhat guarded", it is important that a sentence be structured so as to afford him the opportunity of a lengthy period of conditional liberty, subject to supervision and the sanction of parole. To that end, like his Honour, I would find special circumstances.
30While taking these matters into account, it remains necessary to pass a sentence which adequately reflects the applicant's criminality. However, the non-parole period, while also meeting the need for an appropriate measure of punishment and retribution, must recognise the progress he has made towards defeating his drug addiction and encourage him to remain on that rehabilitative path. The balance of term I propose would provide for a lengthy period of supervision and maintain the sanction of parole for a further period thereafter.
31For the purpose of sentence, we received an affidavit of the applicant of 6 November 2014, and were assisted by enquiries made by the Crown prosecutor's instructing solicitor about his present custodial status. Even though his brother was not required to give evidence in the proceedings to which I have referred, he is still on protection and likely to remain so. He has completed a drug rehabilitation program, and remains drug free. He has also completed some educational programs to improve his employment prospects. His intention upon his release is to live with his mother, together with his partner and child, until he is able to obtain his own housing.
32Accordingly, the court should intervene and resentence the applicant. I would grant leave to appeal, allow the appeal, quash the sentence passed in the District Court and, in lieu, sentence the applicant to an aggregate term of imprisonment for 6 years, commencing on 31 August 2012 and expiring on 30 August 2018, with a non-parole period of 2 ½ years, commencing on 31 August 2012 and expiring on 28 February 2015. I would indicate that, if an aggregate sentence had not been imposed, I would have passed the following sentences:
- Count 1 (aggravated break and enter), taking into account the matters on the Form 1 - 4 years with a non-parole period of 2 years;
- Count 2 (supplying a prohibited drug), taking into account the matters on the Form 1 - 2 ½ years;
- On each of the offences on the section 166 certificate - 15 months.
33RS HULME AJ: I agree with the orders proposed by Hidden J and with his Honour's reasons.
34I would, however, add this. I do not regard the sentence imposed at first instance as manifestly excessive as that expression is usually understood. Indeed, given the extent of the applicant's criminality for which it was imposed, it was arguably lenient.
35However, under the aegis of the "manifestly excessive" ground, and with the acquiescence of the Crown, were raised the issues of the circumstances in which the applicant had become drug addicted and his achievement in apparently overcoming that addiction in conjunction with obtaining, for the first time in his life, regular employment.
36For someone who was in the applicant's situation, his achievements are remarkable. They lessen greatly the weight needing to be given to personal deterrence, rehabilitation and the protection of the community in determining the length of the applicant's non parole period. No doubt his reform has its own rewards but it enables the Court also to provide some reward.