R v Dennis ORCHER

CATCHWORDS: CRIMINAL LAW - sentence appeal - application for bail and adjournment pursuant to s 11 Crimes (Sentencing Procedure) Act 1999 to assess prospects of rehabilitation - reliance on psychiatric report - bail to residential rehabilitation centre - balancing competing sentencing purposes

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 11

PARTIES: Regina Dennis Orcher

SOLICITORS: Ms K White (NSW Office of the Director of Public Prosecutions ) Ms N Miles (Aboriginal Legal Service NSW/ACT)

This is an appeal by Dennis James Orcher from sentences imposed on him by Magistrate Favretto sitting in the Bourke Local Court. A person can appeal from sentences imposed on them by a Local Court magistrate. The appeal is to the District Court, and the judge sitting in the District Court hears the matter anew and determines what he or she thinks is the appropriate sentence.

In this case, the learned magistrate sentenced Mr Orcher to a series of prison sentences which totalled two and a half years. His Honour specified a non-parole period of two years and one month.

I can quite understand why his Honour imposed those sentences. He was dealing with Mr Orcher for a number of offences to do with driving whilst influenced by alcohol and driving whilst disqualified. Mr Orcher's criminal record for these sorts of offences is absolutely appalling. Ms White, who appears for the respondent Director of Public Prosecutions, counted twenty-five or twenty-six offences relating to drink-driving over many years. Mr Orcher is an alcoholic, and has been an alcoholic for a long time.

Ms Miles, who appears on this appeal for Mr Orcher, boldly submits that I should grant her client bail under s 11 of the Crimes (Sentencing Procedure) Act 1999 in order to enable me to assess his prospects of rehabilitation. There is a place called Warrakoo Rehabilitation Hostel. That is eighty kilometres from Wentworth, and is in New South Wales. They have a bed available for Mr Orcher from 10 January 2010.

The offences that Magistrate Favretto was sentencing for were typical, I expect, of the crimes which he had committed on previous occasions. He was driving whilst under the influence of alcohol. On one occasion, he refused a breath test, although it seemed that he could not generate enough breath to operate the machine. On another occasion, he was driving whilst clearly intoxicated near a school. One of the offences was an assault which he committed on his wife whilst he was drunk.

He was assessed by a psychiatrist with Justice Health, who diagnosed alcohol dependence, which has lasted all Mr Orcher's life. The psychiatrist, Dr Cassidy, said in a report that Mr Orcher had expressed a willingness to participate in a residential rehabilitation programme. Significantly, the doctor said that a "pathway to abstinence is the only realistic option, to significantly reduce Mr Orcher's risk of re-offending". It is those passages that Ms Miles fixes on in making her application to bail her client to the rehabilitation centre.

Ms White correctly emphasises the appalling record of Mr Orcher and the question of the safety of the community. These are matters which I raised directly with Mr Orcher. She also pointed out that the latest offences were committed whilst Mr Orcher was on bail. Ms White argued that a more appropriate option would be to reduce the overall effective non-parole period and to make the attendance of Mr Orcher to a rehabilitation centre a condition of a parole fixed by me.

Ms Miles, on the other hand, argues that her client can be taken to the rehabilitation centre with support. She argues that I can fix strict conditions of bail to ensure that, if Mr Orcher leaves the rehabilitation centre, he will be arrested and brought back before me. She says that that will be a more effective reason to keep Mr Orcher in rehabilitation than a parole order.

This is a matter where I have to balance three competing purposes of sentencing. Clearly, as Ms White says, offending such as this needs to be punished in a way that will effectively deter Mr Orcher from committing these crimes again. In addition, there is a very real interest in protecting the community. As I pointed out to Mr Orcher, one of these days he is going to be drunk behind the wheel of a car when a child runs out, and he will not be able to stop in time. There is a real issue here about protection of the community. A third competing purpose of sentencing is the rehabilitation of the offender.

That is the one emphasised by Ms Miles, who says this is an opportunity for her client to deal with his alcohol problem. She also points out that effectively it will protect the community because of what Dr Cassidy has said, that the only effective way of stopping Mr Orcher from re-offending is for him to abstain from alcohol. He was referred to a rehabilitation centre some years ago, but was not able to secure financial support to undertake the course.

On balance, I favour Ms Miles' proposal. I think it has the advantages of immediacy, so that Mr Orcher appreciates, having been to court today, that in about a month's time he will be required to undertake this course. It also has the advantage of the prospect of long-term protection of the community if Mr Orcher can overcome his alcohol problem.

It is preferable, in my view, to impose strict bail conditions than make it a condition of parole. It means, if he breaches his bail, he can be arrested and brought before me. That will mean he will be taken out of the community as soon as he breaches his bail, so that he will not get behind the wheel of a car until he comes back before court, when there is a high likelihood that his appeal would not be successful. As I indicated previously, I can quite understand the reasons for the learned magistrate imposing the sentence which his Honour did.

Mr Orcher has previously pleaded guilty, and I find him guilty of these offences, but I make an order under s 11(1)(a) of the Crimes (Sentencing Procedure) Act 1999 adjourning this appeal to a date to be fixed shortly, and I grant bail to Mr Orcher in accordance with the Bail Act, for the purpose of assessing his capacity and prospects for rehabilitation.

HIS HONOUR: That's the beginnings of the order. I would like you, Ms Miles, to find out a little bit more about the course. I want to know how long it is. I want some arrangements in - something which I can make a condition for him getting there, perhaps one of the facilities that you mentioned, and perhaps you can discuss with Ms White, in light of how long the course is, when I should adjourn the case to. How long, in other words. I am sitting in Crime in Parramatta from 1 March and I'm sitting in Crime in Bathurst from 7 June, so find out about the course. I will stand the matter in the list today. You have a talk to Ms White and if you can formulate some bail conditions - If you can agree them, that's fine, then that's all right, I will work it out after hearing from you both.

HIS HONOUR: Thank you both for your assistance. It is not an easy case.

Mr Orcher, I am going to give you bail - not now - it will be from - in fact I will need to make that order - you will be bailed from 9 or 10 January. You will be in gaol until then, and you will then go down to this Warrakoo place, not far from Wentworth, and then it's up to you. But Ms Miles will explain that. We have got to sort out the details during today, so, at some stage, you will come back today and we will finalise the details about when you go and how you get there and how long you're going to be there. Do you understand?

HIS HONOUR: How are you going with the Orcher - the few minutes between now and Mr Orcher coming here, will that be enough time for you two to settle?

MILES: I think my friend and I are agreed, your Honour, yes.

HIS HONOUR: All right, well bring Mr Orcher, please.

MILES: It may assist, your Honour - I tender a document which is entitled Warrakoo Life Skills Rehabilitation Programme Assessment Committee Rules.

HIS HONOUR: Mr Orcher, we are just going to look at your bail, and Ms Miles handed up assessment committee rules just before you came in. I will make that Exhibit 2.

EXHIBIT #2 WARRAKOO LIFE SKILLS REHABILITATION ASSESSMENT COMMITTEE RULES TENDERED, ADMITTED WITHOUT OBJECTION

HIS HONOUR: So I have to fix bail and we have to fix a date. Do we know how long this course is going to be?

MILES: Your Honour, I was advised by the author of that short report previously tendered that the programme is three months, with the possibility of extension.

MILES: That's correct, your Honour. The matter the Crown and I have discussed is that the matter can come back before your Honour in a date convenient to your Honour in Parramatta, for the purposes of ensuring that Mr Orcher is still in Warrakoo, for Mr Orcher to be excused if represented, and for documents to be provided to your Honour--

MILES: Yes, in relation to his progress, if that would be of some assistance, but it is something that Madam Crown--

HIS HONOUR: Yes, it sounds okay to me. I'm thinking of Friday 12 March.

HIS HONOUR: All right, let's start to work out some - I am able to fix bail from a future date, aren't I?

MILES: Yes. If it assists your Honour, I have reduced the four main conditions to writing. I apologise for the state of it, but we do agree to those.

MILES: I would assume that your Honour would have other standard conditions: to be of good behaviour and the like, that your Honour would also add to that.

My friend also wanted a condition that he not be behind the wheel of a car.

WHITE: Not to occupy the driver's seat of a vehicle, yes.

HIS HONOUR: I notice that he is going to be transported directly to Warrakoo, but I also notice from Exhibit 2 that the first thing they do is go into detox in Mildura for a week.

MILES: I would assume - and I haven't clarified this, your Honour, but, given Mr Orcher has been in custody for some period of time, I believe that there would no difficulty with him being exempted from a detox process as it is the case that he hasn't been consuming alcohol for a considerable period of time now, but I can clarify that if your Honour--

HIS HONOUR: No, I will impose these conditions. If there is a problem, you can come back to me. So you agree to these conditions, Ms White, plus the condition about the car?

WHITE: Yes, and just a general condition to be of good behaviour, your Honour, in view of your Honour's earlier orders, yes.

I make an order under s 11 of the Crimes (Sentencing Procedure) Act 1999 adjourning these appeal proceedings to Friday 12 March 2010 before me at Parramatta at 10 am. I grant bail to Mr Orcher from 11 January 2010. The bail is conditional bail. The conditions are as follows:

1. That he be of good behaviour. 2. That he not occupy the driver's seat of any motor vehicle for the period of the bail. 3. That he be released into the care of an officer of the Prison and Family Support Unit of the ALS (NSW/ACT) Limited on 11 January 2010 and transported directly to Warrakoo Rehabilitation Hostel.
2. That he remain at Warrakoo Rehabilitation Hostel for the entire period of their rehabilitation programme, unless otherwise directed by the manager or the manager's delegate. 5. That he obey all lawful directions of the Warrakoo manager or the manager's delegate. 6. Bail is to be automatically revoked if there is a breach of any of the conditions.
3. I make this order under s 11(1)(a) for the purpose of assessing Mr Orcher's capacity and prospects for rehabilitation. Mr Orcher will be excused from appearing before me on 12 March 2010 provided he is represented by a legal practitioner. The terms of the bail drafted by Ms Miles, agreed to by Ms White, will become MFI 1 and placed with the papers.

16. I direct that a transcript of all of today's proceedings concerning Mr Orcher be prepared and made available to me and the legal representatives of both parties on or before Friday 5 March 2010.

I will explain that in a moment to Mr Orcher. Is there anything else I need to attend to?

HIS HONOUR: Mr Orcher, you are in gaol until 10 January, do you understand?

HIS HONOUR: 10 January, you're coming out of gaol and you're going to straight to this rehab, Warrakoo.

HIS HONOUR: The ALS will arrange for you to get there.

HIS HONOUR: You're on bail. You've heard what I said. If you don't do as you're told down there, and particularly if you get behind the wheel of a car, you breach your bail; you're back before me, and, as I explained to you, chances are you will just have the sentence fixed which the magistrate fixed.

HIS HONOUR: All right, well good luck with the rehab.

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