R v Bell

Court of Criminal Appeal (NSW)|2002-05-21|Before: Smart AJ

CITATION : R v Bell [2002] NSWCCA 195 FILE NUMBER(S) : CCA 60719/01 HEARING DATE(S) : 21 May 2002 JUDGMENT DATE : 21 May 2002

PARTIES : Michael Robert Bell v Regina JUDGMENT OF : Smart AJ at 1

LOWER COURT JURISDICTION : Drug Court LOWER COURT FILE NUMBER(S) : 1999/0436 LOWER COURT JUDICIAL Murrell DCJ OFFICER :

Pursuant to ss 5AF and 5AA of the Criminal Appeal Act 1912, Michael Robert Bell appeals against the asserted severity of final sentences of imprisonment imposed upon him in the Drug Court on 11 October 2001 consequent upon s 12 of the Drug Court Act 1998. These were as follows: Count 1 break enter and steal on 18 January 1996. Count 2 break enter and steal on 22 November 1999. Count 3 break enter and steal on 22 November 1999.

-- all were committed prior to the Drug Court Program. Concurrent sentences on each count of sixteen months,starting on 1 March 2002 with a non-parole period of seven months.

Count 4 Receiving on 26 June 2000 - committed while on Drug Court program.

-- Fixed Term of six months starting on 1 September 2001.

Count 5 Drive in a manner dangerous to the public on 22 November 1999.

Count 6 Possess housebreaking implements,a screw driver on 22 November 1999.

Count 7 Possess prohibited weapon, a knife, without being authorised on 22 November 1999.

Count 8 Never licensed, drive vehicle on road on 14 December 1999.

-- Concurrent sentences on each count of fixed terms of three months starting on 1 March 2002.

-- Fixed term of three months commencing on 1 September 2001.

Count 10 Assault officer in execution of duty on 1 September 2001.

-- Fixed term of one month starting on 1 September 2001.

The Drug Court took into account on count 4 (receiving) the further offences of goods in custody on 18 July 2000 and furnish false information to licensee of pawnbroking business. There was a further count of enter enclosed lands, on which the appellant was fined $110.

The overall effect of the sentences was imprisonment for twenty-two months with fixed and non-parole periods totalling thirteen months starting on 1 September 2001 and ending on 30 September 2002.

The appellant came before the Drug Court on 13 January 2000 on two offences of break, enter and steal, each of which was committed on 22 November 1999, and a number of other offences committed that day (possess housebreaking implements, namely a screwdriver; drive manner dangerous; drive while unlicensed; and unauthorised possession of a prohibited weapon, being a knife).

On 22 November 1999 the appellant participated in a break-in of premises and stole jewellery, compact discs, a television set, cameras, cash and other items with a total value of about $10,380. Later that day he participated in a second break-in and stole property having an estimated value of about $10,000.

On the same day the appellant, after seeing the police, drove across double yellow lines and in the ensuing pursuit reached speeds of eighty to ninety km/h in a sixty km/h zone. The vehicle came to a halt in a dead-end street. When police searched the car they located a screwdriver and a flick knife with a five centimetre blade, as well as the stolen property.

On 14 December 1999 the appellant drove a vehicle never having been licensed to drive.

On 13 January 2000 the judge, after ensuring that the appellant understood his Drug Court Program and receiving his undertaking to obey all the conditions, was satisfied that she should deal with the appellant under s 7(2) of the Drug Court Act 1998. That entitled the Drug Court, if satisfied of the matters set out in the subsection, to convict and sentence the appellant. Section 7(3) required the judge to make an order imposing on the appellant the conditions accepted by him and an order suspending execution of the sentence for the duration of the appellant's program.

While sentencing the appellant, the judge took into account the appellant's prior offences and his subjective features. Consequent upon his pleas of guilty, the judge convicted him of all offences in relation to the two break, enter and steal offences of 22 November 1999 and sentenced him to twenty months imprisonment.

As to each of the other matters, excluding the offence of driving unlicensed, the judge imposed a sentence of three months to be served concurrently with the sentence of twenty months. On the unlicensed driver count, he was fined one penalty unit. He was disqualified from driving for twelve months. The judge suspended the sentences for the duration of the appellant's program.

On 7 March 2000 the judge sentenced the appellant on the January 1996 break, enter and steal charge. He broke and entered a dwelling house, where he stole some jewellery, cash and other items. He gained entry by smashing a window and ransacked the premises. The offence was committed in the context of a serious drug dependency. He had pleaded guilty.

The judge was satisfied that she should deal with the matter under s 7(2) of the Drug Court Act. She reviewed his record and subjective features. She held that the existence of the offence did not really increase the appellant's overall criminality. The appellant was convicted and sentenced to eighteen months imprisonment, to be served concurrently with the sentence of twenty months previously imposed. She imposed the conditions of his current Drug Court Program and suspended execution of the sentence for the duration of the program.

On 13 April 2000 the Drug Court imposed on the applicant a sentence of imprisonment for two days for being in possession of heroin on 12 April 2000.

The appellant committed breaches of the conditions of his program. The Crown applied to the Drug Court to take action and terminate the program. The appellant failed to appear as required at the Drug Court on 27 June 2001 and a warrant was issued for his arrest. He was arrested on 1 September 2001. The application to terminate the program was heard by the judge on 20 September 2001. After reviewing his performance on the program, his breaches of the conditions and his inability to keep off drugs during 2001 and noting that he had effectively abandoned his program, the judge concluded that there was no useful purpose to be served in the participant continuing on the program. She terminated the program.

Counsel for the appellant drew attention to the judge's remarks on 20 September 2001 and in particular to her observation that the Court could best address and recognise the progress which the participant (that is the appellant) had made through the final sentence. As earlier mentioned, the appellant came before the Drug Court for final sentence on 11 October 2001. The judge stated that when she imposed the sentences on 13 January 2000, including those of twenty months, she had regard to the appellant's significant criminal record. She summarised portions of it.

She noted in her remarks of 11 October 2001 that the appellant's record had a substantial number of entries for offences of break, enter and steal and that he had been subject to significant sentences of imprisonment in relation to such matters. She noted that in October 1996 (should read "December 1996") he received a sentence of two years with a minimum term of eighteen months.

The judge accepted that her initial sentence of twenty months did not sufficiently allow for his plea of guilty to all matters. She accepted, as did the Crown, that the discount for a plea of guilty should apply to the jurisdictional limit or two years rather than to the absolute maximum available penalty.

The judge traced the appellant's history on the Drug Court program, which was initially abstinence-based. While he made some progress in the first six months, it was thought by those supervising the program that he was not progressing as well as he could and in July 2000 he was placed on Methadone. He progressed reasonably well until February 2001, although there was never a lengthy sustained period of good performance. It was always a struggle for him to progress beyond stage 1. Whenever he was close to promotion to stage 2, he used drugs a number of times.

The appellant developed an ambivalence to rehabilitation. This was coupled with the impact on the appellant of association with a poor peer group and ongoing bouts of depression and grief over the loss of his child in 1999. This latter loss continued to affect him, particularly at mid-year periods, as indicated by the commission of offences and relapse into drug use in mid-2000 and the substantial abandonment of his Drug Court Program in mid-2001. However, he did continue to collect Methadone and occasionally undertook drug tests when requested.

During the currency of his program he spent thirty-five days in custody serving sanctions. He had been in continuous custody since 1 September 2001.

The judge referred to the appellant's background in her reasons of 13 January 2000, as well as those of 11 October 2001. In outline, the appellant was born on 30 January 1975 and experienced a good childhood until his parents separated when he was twelve or thirteen years old. Thereafter, he was raised by his mother and problems began to develop. He was involved in an arson incident in school and came before the Children's Court for that and matters of dishonesty. All this led to his leaving school. He used drugs from about that time. He first used heroin and was first imprisoned at about the age of eighteen. He was apparently free of illicit drugs during 1998 and the early part of 1999, but following the loss of his baby in June 1999 he returned to drug use.

The judge described the appellant's performance on a Drug Court Program as one of periods of success lasting perhaps several months and then relapse. She said that he did not have a high sanction rate compared with some participants who had had their Drug Court Programs terminated. There was a total of thirty-five days over about eighteen months, an average of about two days per month. He did demonstrate motivation most of the time, but was unable to apply himself for a substantial period. Thus, he would need a prolonged period of intensive supervision by the Probation and Parole Service following his release from custody.

The new offences which the Court dealt with on 11 October 2001 were: (a) driving whilst disqualified on 22 June 2000. He was stopped by police. He said he was giving a lift toa drunken friend;

(b) receiving stolen property on 26 June 2000. There had been a break-in of premises on 25 June 2000 and the following day the appellant pawned a VCR which had been stolen. A friend asked him to pawn the item and he received $50 for his trouble.

There were two Form I items taken into account on the receiving count; namely, supply false information to the pawnbroker and goods in custody, being a blanket stolen from the same premises.

(c) Enter enclosed lands on 27 May 2001. The appellant had been excluded from Westfield, Liverpool for two years from February 2001. (d) Assault police. Consequent on information received that something serious had occurred at certain premises, the police attended there. The appellant was also there but was not ultimately implicated.

The police kicked in the door and it flung back on the appellant and hit him. The incident became heated, with the appellant lunging at the police and head-butting them in retaliation.

As a result of acceding to the submission that the previous allowance for the guilty plea had been inadequate, the judge reduced the sentences from twenty months to eighteen months. She further reduced the sentences because of one month spent in pre-program custody and a little over one month in post-program custody. This led to concurrent sentences of sixteen months on the three break, enter and steal offences.

The judge rightly rejected the submission that the sentences for the break, enter and steal offences and that for the receiving should be concurrent.

In effect, the judge imposed a total overall sentence of twenty-four months (sixteen months, six months and two months) in custody. As the appellant had demonstrated that he had some capacity for rehabilitation and his rehabilitation was likely to be lengthy and difficult and require extended close supervision, she fixed a non-parole period of seven months. She thought that he needed to be on parole for nine months. That was a special circumstance.

The appellant relied on the judge's comment on 20 September 2001: "The participant has come a long way in a number of respects. First of all in terms of his drug use, secondly, in terms of the nature and extent of his offending behaviour."

There was also the report of Ms Sunjic, the co-ordinator of the South-Western Sydney Area Health Service, that the appellant had significantly improved since he had been involved in the Program.

The appellant submitted that the Program involved a considerable restriction on his liberty. Frequent urine tests and regular contact with counsellors and the Court were required. The appellant contended that the judge should have taken the stringent nature of the Program into account and reduced the final sentence accordingly.

Emphasis was placed in the oral submissions of the appellant on the final paragraph of the judge's reasons on 20 September 2001 that the Court could best address and recognise the progress which the participant had made through the final sentence. The judge has done that in fixing a short non-parole period. The appellant was not subject to a live-in residential regime. He had considerable freedom of movement and did not live in a controlled environment. The Program was for his own good. If he had completed it successfully, he would have probably received a lesser sentence, possibly a bond.

The Crown pointed out that the appellant had committed additional offences since entering into the Program and that this was a matter of aggravation.

In the circumstances of this case and having regard to the course which the judge took, she was not bound to reduce the sentences further. The sentences imposed by the judge contained a significant measure of leniency. If he had not entered the Drug Court Program they would probably have been longer. His record did not entitle him to leniency and the offences of break, enter and steal involved dwelling houses and a substantial amount of property. The judge could not ignore offences which took place during the program. Lesser sentences than those imposed were not warranted in law.

There was one minor slip which should be corrected. The judge stated that the earliest date for release on parole was 30 September 2002. However, as the sentences are for less than three years, s 50 of the Crimes (Setencing Procedure) Act 1999 requires the Court to make an order that the appellant be released on parole on 30 September 2002.

The following orders are made: 1. The appeal is allowed to the extent of adding a direction that the appellant be released on supervised parole on 30 September 2002.

Otherwise, the appeal is dismissed.

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