FAGAN J: The Applicant seeks leave to appeal against an aggregate sentence imposed upon him by the Drug Court of New South Wales on 25 September 2014. This was a "final sentence" pursuant to s 12 of the Drug Court Act 1998 (NSW) in respect of nine offences. They included four counts involving breaking and entering dwelling houses (ss 112(1)(a), 112(2) and 113, Crimes Act 1900 (NSW)), one count of possession of a prohibited drug and two counts of supply (ss 10(1) and 25(1), Drug Misuse and Trafficking Act 1985 (NSW)).
Most of the offences were committed between June 2012 and February 2013 but the last two (supply prohibited drug) occurred on 29 April 2014. The Drug Court has jurisdiction to sentence offenders for both summary and indictable offences, as occurred here. All counts except the aggravated break and enter (s 112(2), Crimes Act) were either summary offences or indictable offences being dealt with summarily.
Section 5AF(1)(a) of the Criminal Appeal Act 1912 (NSW) confers upon a person sentenced by the Drug Court the same right of appeal to the Court of Criminal Appeal as would be available under s 5AA to a person convicted by the Supreme Court in its summary jurisdiction. Leave to appeal is required: s 5AA(1A).
Section 5AF(3)(a) directs that the power of the Court of Criminal Appeal to hear and determine a sentence appeal from the Drug Court concerning an indictable offence is to be exercised by two or three judges as directed by the Chief Justice. Where a sentence for a summary offence is under appeal from the Drug Court, par (b) of subs (3) applies:
"(3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised:
(a) …
(b) in relation to an appeal against a sentence for a summary offence - by such single judge of the Supreme Court as the Chief Justice may direct unless the judge, on the application of either party or of his or her own motion, considers that the appeal raises matters of principle or it is otherwise in the interests of justice for the appeal to be dealt with by the full Court of Criminal Appeal and notifies the Chief Justice accordingly, in which case the appeal is to be heard and determined by such 3 or more judges of the Supreme Court as the Chief Justice may direct."
The Chief Justice has directed that I should exercise the Court of Criminal Appeal's power so far as this application concerns the sentence passed by the Drug Court for summary offences. I consider that it is in the interests of justice for the appeal to be dealt with by three judges because it arises out of an aggregate sentence which was passed for summary offences together with indictable offences (one of them being dealt with on indictment, the others summarily). It would not be practical to determine whether any sentencing error occurred in respect of the summary offences separately from the same question in respect of the indictable offences. Pursuant to s 5AF(3)(b) I have, accordingly, notified the Chief Justice who has directed that the appeal so far as it concerns summary offences be heard and determined by the bench constituted to deal with the indictable offences.
The Applicant was assessed as eligible for the Drug Court Program on 11 April 2013. He first came before the Drug Court on 9 May 2013. The offences dealt with that day by way of "initial sentence" under s 7A, Drug Court Act and the individual sentences which Judge Dive indicated (pursuant to s 53A(2)(b), Crimes (Sentencing Procedure) Act 1999 (NSW)) were as follows. All of the matters were able to be dealt with summarily:
1. Count 1, break enter and steal on 19 June 2012, s 112(1)(a), Crimes Act. The Applicant had forced entry to an unoccupied home in Kensington, disturbed the contents of a number of rooms and removed, inter alia, an Apple MacBook. The maximum penalty on summary prosecution was 2 years: s 267, Criminal Procedure Act 1986 (NSW). Indicated sentence: 15 months.
2. Count 2, possess prohibited drug, s 10(1), Drug Misuse and Trafficking Act, 22 December 2012. The Applicant was observed on Anzac Parade under the influence of an intoxicant. He was in possession of 0.26g of heroin. The maximum penalty was 2 years. Judge Dive indicated 2 months.
3. Count 3, break and enter with intent to steal on 8 February 2013, s 113(1), Crimes Act. The Applicant was observed attempting to gain entry to an unoccupied unit in Kensington. Indicated sentence: 10 months.
4. Count 4 was withdrawn.
5. Count 5 was dealt with under s 10A, Crimes (Sentencing Procedure) Act without imposition of penalty.
6. Count 6, break enter and steal on 20 February 2013, s 112(1)(a), Crimes Act. The Applicant forced entry to an unoccupied freestanding house and took a large number of items with an estimated value of $3,000. His Honour indicated 18 months.
7. Count 7, drive whilst disqualified on 22 March 2011, s 25A(1)(a), Road Transport (Driver Licensing) Act 1998 (NSW). This offence had originally been dealt with on 30 March 2011 at Waverley Local Court, with the Applicant entering into a good behaviour bond for 2 years. The maximum penalty was 18 months imprisonment. His Honour indicated 3 months.
8. Count 8, break enter and steal on 15 June 2012, s 112(1)(a), Crimes Act 1900. The Applicant forced entry to a home in Kensington and removed some items. On 27 September 2012 this offence had been dealt with by the District Court at Sydney by way of a 12 month suspended sentence and bond. Judge Dive indicated that if this matter were to be dealt with alone, the bond would be revoked and the 12 month sentence would have to be served.
Pursuant to s 53A, Crimes (Sentencing Procedure) Act his Honour fixed an aggregate sentence of 2 years for all of these offences, exercising jurisdiction under subs (3) of s 7A, Drug Court Act. It was not necessary to fix a non-parole period: see subs (4) of s 7A. In accordance with subs (5) his Honour suspended execution of the aggregate sentence for the duration of the Applicant's participation in the Drug Court Program. This Program included prescription of methadone and a requirement that he undergo a supervised urine drug test three times per week.
On 17 February 2013 the Applicant had committed an indictable offence, which became Count 9. He broke into a house at Mascot. Two residents of the house were in a bedroom upstairs at the time. When the owner of the house, who occupied the downstairs level, returned to the property the next day considerable disturbance of possessions was apparent, a syringe was found on the floor in a bedroom and there were spots of blood on a bed and in various locations throughout the house. These were subsequently shown to be of a similar DNA profile to that of the Applicant. The Applicant was the former boyfriend of the property owner's daughter. He had been to the premises on past occasions but the owner had never permitted him to enter. During the Applicant's intrusion into the house there had been no confrontation with the occupants as they remained in their bedroom upstairs.
The Applicant pleaded guilty to this charge and it was brought before Judge Corbett in the Drug Court on 8 August 2013. As the offence had been committed prior to the first "initial sentence" proceeding before Judge Dive (see [8] above), it is not clear why the charge had not reached the Drug Court and been dealt with on that occasion. Judge Corbett found the circumstances of the offence of 17 February 2013 as summarised above. Her Honour accepted that the offence had not been planned and that the Applicant had been "under the influence of some form of substance" at the time.
In passing a further "initial sentence" under subss (8) and (9) of s 7A of the Drug Court Act Judge Corbett took into account the Applicant's long criminal history. He was at the time 38 years of age. Commencing in 1999 he had been convicted over about four years of a number of drug matters, goods in custody and an offence of aggravated break and enter. For the latter he was sentenced in February 2004 to 3 years imprisonment with a non-parole period of 1 year. Between 2005 and December 2011 he had been convicted of larceny, possession of housebreaking instruments, break and enter, goods in custody and shoplifting. He had been sentenced to and had served a number of prison terms in the order of 4 to 12 months.
Taking into account the objective seriousness of the offence and the Applicant's subjective circumstances Judge Corbett imposed a substitute "initial sentence" in respect of all of the offences which had first been dealt with by Judge Dive on 9 May 2013, together with the additional count of aggravated break and enter on 17 February 2013. Her Honour fixed a new aggregate term of imprisonment under s 53A(1), Crimes (Sentencing Procedure) Act of 4 years. As before, it was not necessary that a non-parole period be fixed. The sentence was wholly suspended under s 7A(5)(b) of the Drug Court Act for the duration of the Applicant's continued participation in the Drug Court Program.
On 29 April 2014 the Applicant committed two further offences, contrary to s 25(1), Drug Misuse and Trafficking Act. Namely, he supplied 0.13g heroin and 0.11g cocaine to a single individual. The Applicant was taken into custody on 29 April 2014. Bail was refused. He initially entered a plea of not guilty. The matter was to be dealt with in the Local Court. On the day it was listed for hearing, 21 July 2014, he changed his plea.
The Applicant's participation in the Drug Court Program was terminated on 24 July 2014 pursuant to s 10(1)(a) and s 11, Drug Court Act. Accordingly he came before Judge Corbett on 25 September 2014 for final sentence pursuant to s 12. Section 12 provides as follows:
"12 Imposition of final sentence
(1) On terminating a drug offender's program, the Drug Court must reconsider the drug offender's initial sentence.
(2) In reconsidering a drug offender's initial sentence, the Drug Court must take into consideration:
(a) the nature of the drug offender's participation in his or her program, and
(b) any sanctions that have been imposed on the drug offender during the program, and
(c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment:
(i) under the sentence, or
(ii) under the condition of the program arising under section 8A.
(3) After considering a drug offender's initial sentence, the Drug Court is to determine the drug offender's final sentence:
(a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the initial sentence related, or
(b) by making an order confirming the initial sentence.
(4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence.
(5) (Repealed)."
In careful reasons dated 25 September 2014 Judge Corbett considered all of the matters to which she was required to give attention under subs (2) of s 12. The additional charges of supply of prohibited drugs were before the Drug Court pursuant to subs (8)(a) of s 7A. Her Honour determined to impose an aggregate sentence for the two new offences together with the seven others previously considered. For that purpose her Honour took into account the objective facts of the two most recent offences (referred to as Counts 10 and 11), the history of the Applicant's pleas in relation to them (which resulted in the allowance of a 10% discount) and the detailed facts of the most serious offence before the Court, the indictable matter of aggravated break and enter on 17 February 2013 (referred to as Count 9). With respect to the latter her Honour updated the facts by noting that the Applicant had made a written apology to the owner of the premises and had reimbursed the cost of cleaning. This was confirmed by letter from one of the occupants, the Applicant's former girlfriend, who was apparently supportive of him as her Honour noted.
Her Honour also took into account the Applicant's long criminal history, the course of his participation in the Drug Court Program, a report from a psychologist tendered on his behalf, details of his health and history of drug use and submissions made on his behalf by his legal representative. Judge Corbett found special circumstances which justified adjustment of the relationship between the non-parole period and balance term. The indicative sentences nominated by her Honour pursuant to s 53A(2)(b) were as initially stated by Judge Dive on 9 May 2013 in relation to Counts 1-3 and 6-8 (see [8] above); 3 years with a non-parole period of 18 months for Count 9 and 5 months for each of Counts 10 and 11. Her Honour fixed an aggregate sentence pursuant to s 53A comprising a total term of 4 years and 2 months and a non-parole period of 2 years and 2 months.
For the purposes of determining the date from which the sentence should run, at pp 8 and 9 of her reasons Judge Corbett added up a number of days of sanctions to which the Applicant had been subject in the course of the Drug Court Program, some days of pre-sentence custody and some further days upon which bail had been refused. Her Honour calculated the total of these at 220 days. This led her Honour to nominate "an agreed backdate to 17 February 2014". In fact, there was an error in the addition. The total number of days should have been 231 and the backdate should have been to 6 February 2014.
At p 11 of her reasons Judge Corbett determined that the commencement of the period of imprisonment should be backdated a further 5 months, apparently to allow for the period of the Applicant's incarceration from the date of his arrest in relation to the two most recent supply offences to the date of the sentence hearing before her Honour. This period had not otherwise been counted in the calculation of 220 days which her Honour had previously made. The result was that the learned judge concluded the sentences were to run from 17 September 2013 (at p 11 of her Honour's reasons).
The error referred to in [18] above was subsequently corrected in Chambers and her Honour's orders were entered using the correct date, such that the Applicant's sentence dated from 6 September 2013.
[2]
Ground 4 - failure to consider a range of facts at final sentencing
The Applicant's written and oral submissions were prepared and presented by him in person. A degree of patience has been required in order to relate the Applicant's arguments to his grounds. In support of Grounds 1 and 4 the Applicant has referred exclusively to the circumstances of Count 9, the aggravated break and enter charge concerning his intrusion into the home of his former girlfriend on 17 February 2013. He raises these matters:
1. The learned sentencing judge did not take into account a letter written to the Court by the occupant confirming that he had made restitution. This is incorrect. The matter was expressly referred to in the sentencing remarks and taken into account.
2. He pleaded guilty immediately. This was recognised and taken into account. In Judge Corbett's remarks of 8 August 2013 concerning the further initial sentence, when her Honour first indicated an individual sentence for this matter of 3 years, a 25% discount for the early plea was accorded.
3. "I also believe the sentencing judge did not take into account the fact I was familiar with the property also being the home of my partner daughter". Contrary to the Applicant's contention, the learned sentencing judge was well aware that the Applicant was known to the owner of the property and had been in a relationship with the owner's daughter. This was referred to both in the remarks associated with the second initial sentence (8 August 2013) and again in the remarks on the final sentence.
4. "I know for certain that I did not steal anything or damage anything on purpose and I was only there to find Briarne". Her Honour did not find that anything had been stolen. There was evidence of damage to the property, including disturbance of possessions and the leaving of blood stains. Her Honour was entitled to act on this evidence, which does not appear to have been contested.
Taking into account all of the objective circumstances of the offence to which the Applicant refers in his submission, his proposition that "the offence should [have] been treated more like a domestic disturbance than a planned criminal activity" was not something that her Honour was obliged to accept or give weight to. This was the most recent incident in a repetitious pattern of the Applicant forcing entry to homes in the Kensington/Mascot area. The circumstances of the instant offence were aggravated by the presence of two residents of the property sleeping in a bedroom upstairs at the time of the break in. Her Honour justifiably took into account the apprehension which this event must have caused to them, albeit that the incident did not result in a confrontation.
The effect of the adjustment to the aggregate sentence which her Honour made to take into account this offence was the addition of 2 years. The non-parole period fixed on final sentence on 25 September 2014 was only 52% of the aggregate total period of imprisonment. Applying that proportion to the 2 years of additional head sentence which was the effective result for the aggravated break and enter on 17 February 2013, the extension of the non-parole period which may be attributed to this count is only 12 months and 2 weeks. Far from being excessive, that must be regarded as lenient treatment of an offender who has demonstrated persistent disregard of the property rights and domestic security of other citizens for over a decade.
Apparently with reference to this ground the Applicant also complains that when his final sentence was determined there was a failure to take into account a psychological report, references, a letter from "the victim" and information regarding his participation in the Drug Court program. That is not so. All of these matters were before Judge Corbett on 25 September 2014 and they are referred to in her Honour's remarks on final sentence.
Lastly the Applicant asserts that s 12(4), Drug Court Act was infringed because his final sentence was greater than the initial sentence. But subs (4) only prohibits any increase in the sentence for a particular offence, from the initial stage to the final. That did not occur in relation to the Applicant.
I would dismiss Grounds 1 and 4.
[3]
Ground 2 - accumulation of Local Court sentences
Under this ground the Applicant has made reference to s 58(1), Crimes (Sentencing Procedure) Act 1999 (NSW) which provides as follows:
"(1) The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence (or, if more than one, the first of them) began."
This section would not appear to have any application to the Drug Court: s 15(3), Drug Court Act. In any event the final sentence imposed by her Honour would not end more than 5 years after the date on which any existing sentence began. Ground 2 should be dismissed.
[4]
Ground 3 - accumulation of Local Court and District Court sentences
There can be no valid objection to an aggregate sentence imposed for a combination of summary and indictable offences. That is precisely what the Drug Court Act permits in ss 7A and 12. Ground 3 should be dismissed.
[5]
Ground 5 - error in backdating the commencement of the sentence
As mentioned in paragraphs [18]-[20] above, there was an error in her Honour's initial calculation of the backdating, by 11 days, as appears from the remarks on sentence. The Court was informed by the Crown that a correction was made by her Honour in chambers. The Drug Court's records and those pertaining to the custody of the Applicant should show that he has been sentenced to an aggregate sentence for Counts 1, 2, 3 and 6-11 (as particularised in the remarks on sentence of 9 May 2013, 8 August 2013 and 25 September 2015) of 4 years and 2 months commencing 6 September 2013 and expiring 5 November 2017. A non-parole period of 2 years and 2 months was fixed, commencing 6 September 2013 and expiring 5 November 2015, at the expiration of which the Applicant will be eligible for parole.
The orders I would propose are as follows:
1. Leave to appeal is granted.
2. The appeal is dismissed.
[6]
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Decision last updated: 19 August 2015