R v OHAR

1 HULME J: On 14 April 2003 this applicant for leave to appeal was sentenced by Judge Milson in the Parramatta Drug Court for various offences to which he had pleaded guilty. The offences fell into three groups. In respect of the first group Judge Milson acted pursuant to section 12 in part 2 of the Drug Court Act 1998. Section 5AF of the Criminal Appeal Act provides that the power of the Court of Criminal Appeal to hear and determine appeals in respect of such matters is to be exercised by a single judge and that is what I am now doing. 2 Appeals by the applicant in respect of the second and third groups of offences were considered by three members of this Court in R v Ohar [2004] NSWCCA 83. In the course of those proceedings, the Court held it could not deal with the first group of offences, nor with the third, in respect of which Judge Milson had been exercising a Local Court jurisdiction, but went ahead and dealt with these appeals in the second group. A Crown appeal in relation to the first and second group was also considered and dismissed. 3 The first group included nine offences. One was of breaking, entering and stealing committed on 10 July 2000; one of possession of housebreaking implements, viz. a pair of garden clippers found in the appellant's pocket on that same day; and a third was of being carried in a motor vehicle knowing it to have been stolen. (At times that offence has been referred to by judges who have previously considered the matter as stealing a motor vehicle. I wish to make it clear that, though I may also use that description, I am conscious of the nature of the appellant's offence.) 4 When the offences in this group were first dealt with in the Drug Court on 15 January 2001, the appellant was sentenced in respect of the three just described to concurrent terms of imprisonment of 12 months and three weeks - a period Judge Barnett arrived at by taking, from a period of 18 months he would otherwise have imposed, five months and four days the applicant had spent in pre-sentence custody. The sentences were suspended in consequence of the appellant accepting the conditions of a drug program. 5 The applicant entered into the drug program. His participation in this is detailed in the remarks of the Court of Criminal Appeal in the matter to which I have referred and which I need not repeat. In summary, the appellant left the program and his involvement in it was terminated by the Drug Court in September 2001. 6 While in the program, he spent a further period of 37 days in custody, although four of these seemed to have related to sanctions imposed on him. He also spent a period of approximately one month in the full-time residential rehabilitation which might be regarded as quasi-custody. There was some further time spent participating in the program. 7 Included in the remaining six offences were 2 of having goods in custody, one of malicious damage and one of breach of a recognisance for breaking, entering and stealing. In respect of these six, Judge Milson imposed a penalty of imprisonment until the rising of the Court and, unsurprisingly, there is no appeal against those sentences. In respect of the three offences previously mentioned, Judge Milson imposed concurrent sentences of fixed terms of nine months imprisonment dating from 9 October 2002, the date upon which the applicant was arrested and it is these sentences which are the subject of the current appeal. 8 The gravamen of the complaint in the appeal is that Judge Milson's imposition of imprisonment for a fixed term of nine months was manifestly excessive in that it did not give adequate recognition to: (i) the custody the appellant had endured prior to 15 January 2001; (ii) A non-parole period of only about 4½ months the fact that the sentence of 12 months and three weeks imposed by Judge Barnett could be inferred by reference to the 18 months and the five months, four days to which I have previously referred to have envisaged a non-parole period of only about four and a half months; (iii) the time spent in custody or quasi custody during the drug program. 9 Attention was drawn to the terms of section 12 of the Drug Court Act which, so far as is relevant, provides: (i) On terminating a drug offender's program, the Drug Court must reconsider the drug offender's initial sentence. (ii) 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 (iii) 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. (iv) 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. (v) (Repealed). 10 Judge Milson seems clearly to have had those provisions in mind for, in the course of sentencing the appellant, his Honour said: "… I take into account the foregoing features to the extent that they relate to those earlier offences only, the nature of his participation in his drug court program, and the time that he has spent in rehabilitation centers and in custody during his drug court program…" 11 While the matters to which I have referred clearly provide the appellant with an argument that insufficient attention was paid by Judge Milson to the periods the appellant had spent in custody or quasi custody, they are not the only matters which were relevant. 12 The offence described as stealing of a motor vehicle rendered him liable to imprisonment for five years - Crimes Act, ss117 and 154A. 13 The offence of breaking, entering and stealing rendered him liable to imprisonment for 14 years - Crimes Act s112. The circumstances of that offence were that the Appellant and a co-offender attempted unsuccessfully to jemmy open a side window of a unit. They then both walked to the rear of the premises where they forced entry by smashing a glass window and once inside stole a quantity of ladies jewellery, jewellery bags, compact disc player and some 25 compact discs. At the time they unplugged a television set and Foxtel box from the wall. 14 The offence of possessing housebreaking implements carried a maximum penalty of seven years - Crimes Act s114. When found in the applicant's pocket the pair of garden clippers, the subject of this charge, was seen to have fresh scratch marks on them. 15 Prior to the commission of these offences, the applicant had committed numerous offences involving drugs and dishonesty. He had been convicted of offences of dishonesty in Victoria, including burglary, theft, and attempted burglary, and had been sentenced to imprisonment in that State. In New South Wales, he had committed at least 11 offences of dishonesty. Two of these were of breaking, entering and stealing for which he had been sentenced on one occasion of imprisonment to a minimum term of one year and an additional term of two years and on the second had, in October 1997, been placed on a three-year recognisance. 16 Four of the prior offences involved stealing or similar dealing with motor vehicles. In January 1998 he had been sentenced for two of these offences to current terms of imprisonment for minimum terms of 12 months. 17 It will be apparent that the recognisance to which I have referred was current at the time of at least one of the three offences for which Judge Milson imposed the nine months term. 18 In the face of the applicant's record, had the sentence for the offence of breaking, entering and stealing stood on its own, a nine-month sentence of actual custody for it would have been manifestly inadequate. He was a recidivist. Prior sentences had not operated as a significant deterrent. His offence was committed while subject to a recognisance for a similar offence. These matters and the need to protect the public from him - not forgetting the limits there are on the weight that can be given to that factor - see Veen v R (No 2) (1987-1988) 164 CLR 465 - meant that a substantially higher sentence was required. 19 Because the sentence was to be cumulative to other sentences, issues of totality arose, but I am not persuaded that these required that the sentence for this offence of breaking, entering and stealing should have been less than it was. 20 One may accept that in R v Henare [2003] NSWSC 376, Smart AJ held on the facts of that case, once regard was had to the length of the sentence set before an offender entered a Drug Court program, that the custodial portion of a sentence imposed in circumstances similar to those here should have been less. However, section 12 makes it clear that the earlier sentence imposed by the Drug Court is the limiting factor, not the proportion of that length which a non-parole period normally is of such a total term. While I do not suggest Smart AJ's decision was not appropriate on the facts of that case, the facts here are different and I see no reason to interfere with the sentence imposed on the breaking and entering charge. 21 In that connection, it is not inappropriate to reflect on the precise terms of s12 of the Drug Court Act. Subsection 2 of that section requires the Drug Court to take into consideration matters there specified. It does not say that the sentence ultimately imposed must be reduced on account of those factors. Subsection 4, as I have said, imposes its own limit and I see no justification for imposing another. 22 It was argued on behalf of the appellant that to adopt the approach which I have involves elements of double jeopardy and reconsideration by one District Court Judge of a matter earlier determined and, furthermore, that to do as I have is implicitly to place an applicant at risk of greater penalty in consequence of participation in the Drug Court program. 23 While I acknowledge that there is some force in these submissions, at the end of the day, it seems to me that the appropriate stance is to follow precisely the words and limits in the section rather than infer others. 24 Many of the considerations to which I have referred in connection with the breaking, entering and stealing offence apply to the offence of being carried in the motor vehicle although, having regard to the relative severity of the two offences, I think it fair to say not to the same extent. Furthermore, the facts of that offence are scarce. All that is revealed is what one may infer from his plea and that a large number of the fingerprints of the appellant and his brothers were located in a number of points in the vehicle. He denied driving the vehicle and while his record of dishonesty makes one disinclined to accept what he said, there is no evidence that he did drive it. 25 Nevertheless, at the end of the day, the conclusion at which I have arrived in relation to that offence is that the sentence is not shown to be excessive. The same can be said in relation to the housebreaking implements charge once recognition is given to both the fact that that sentence was imposed as a concurrent one and the applicant's prior record. In light of that record, had the housebreaking implements charge stood on its own, I would still have thought a sentence of nine months not inappropriate. 26 I should also recognise, lest it be thought I have overlooked them, points made by the counsel for the appellant concerning inadequacy in Judge Milson's reasons. 27 His Honour failed, as required by section 45(2) of the Crimes (Sentencing Procedure) Act to set out reasons for declining to set a non-parole period. It is however obvious why his Honour imposed a fixed term: He intended to accumulate other offences on top of it. 28 His Honour also did not, in any meaningful way, record why he selected the nine-month period that he did by comparison with that which had previously been imposed by Judge Barnett. The circumstances required that his Honour give attention to the totality of the custody which the appellant had undergone, both before being sentenced by Judge Barnett and subsequently and to the question of custody and quasi-custody. His Honour did not adequately deal with this topic in accordance with a judge's usual obligation to provide reasons for a decision. In my view, those failures enlivened the jurisdiction of this Court to interfere, but, for the reasons I have indicated, I am not disposed to do so. 29 Section 6 of the Criminal Appeal Act does not apply in the circumstances of this case, but section 5AA(4) of the Act and ordinary principles make it clear that there is no occasion to interfere with a sentence which, whatever the errors which may have occurred in arriving at it, is one which is no higher than this Court would itself impose. That is the situation in this case. 30 There is another matter to which, for completeness, I should refer. When Judge Milson dealt with the third group of offences, he imposed sentences also of nine months which were made concurrent with the sentences which are the subject of this present appeal. As this Court has no power to interfere with those sentences and the time for appealing from them has long since expired, in one sense it could be said that this appeal is purely academic. 31 Counsel for the appellant however, has submitted that if I was disposed to allow this appeal in relation to the first group of sentences, I could have advanced the commencing date of the sentences imposed in respect of 32

the second group, thus bringing forward the end of the appellant's current sentence. What he says is, I think, literally true, but it would not have been an appropriate exercise of this Court's power to interfere with that second group of sentences. 33 Accordingly, the orders of the Court are that the appeal is dismissed.

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