R v Uyrun

Court of Criminal Appeal (NSW)|2004-04-13|Before: Wood CJ, Sperling J, Hislop J

CITATION : R v Uyrun [2004] NSWCCA 103 HEARING DATE(S) : 13 April 2004 JUDGMENT DATE : 16 April 2004

JUDGMENT OF : Wood CJ at CL at 1; Sperling J at 1; Hislop J at 1 DECISION : See paragraph 2 of the judgment.

CATCHWORDS : Criminal law - Crown appeal - against "final" sentences and an additional sentence imposed by the Drug Court of NSW - no question or principle LEGISLATION CITED : Drug Court Act 1998, s12 CASES CITED : Toman [2004] NSWCCA 31 Wall [2002] NSWCCA 42 PARTIES : Regina Mustafa Uyrun FILE NUMBER(S) : CCA 60030/03 COUNSEL : Mr D Frearson for the Crown Mr H Dhanji for the Respondent SOLICITORS : Director of Public Prosecutions Legal Aid Commission of NSW for the Respondent

LOWER COURT Drug Court JURISDICTION : LOWER COURT 2002/0232 FILE NUMBER(S) : LOWER COURT Barnett DCJ JUDICIAL OFFICER :

12 - THE COURT OF CRIMINAL APPEAL 60030/03

Wood CJ at CL Sperling J Hislop J

Friday, 16 April 2004 Regina v Mustafa Uyrun Judgment 1 The Court: This appeal came on for hearing on 13 April 2004. The Crown appealed against sentences imposed on the respondent in the Drug Court of New South Wales by Barnett DCJ on 20 November 2003. 2 The Court was of the opinion that the appeal should be dismissed. Because the respondent was due to be released from prison on 14 April 2004 under the sentences as imposed at first instance, we made orders dismissing the appeal and directing that the respondent be released from prison on that date. Our reasons for that decision follow. 3 In relation to 12 offences, committed on nine separate occasions, the effective sentence was two years and two months with a non-parole period of eight months. The offences consisted of nine property offences and two offences of possessing a prohibited drug. Additionally, a fine of $100 was confirmed for one offence of giving a false name.

The Drug Court Act 1998 4 The scheme of the legislation involves the admission of offenders to a Drug Court programme, the imposition of suspended sentences (called "initial sentences"), and provision for reassessment of the initial sentences by way of final sentences if the programme is terminated for the particular offender. 5 Section 12(1) provides that, on termination of the drug offender's programme, the Drug Court must reconsider the drug offender's initial sentence or sentences. 6 Section 12(2) provides that, in reconsidering the initial sentence or sentences, the Drug Court must take into consideration certain specified matters including the nature of the drug offender's participation in his or her programme. 7 Section 12(3) provides that, after considering a drug offender's initial sentence or sentences, the Drug Court is to determine the drug offender's final sentence either by setting aside the initial sentence or sentences and re-sentencing the offender in the ordinary way or by making an order confirming the original sentence or sentences. 8 Section 12(4) provides that a final sentence for an offence is not to be greater than the initial sentence imposed in relation to that offence.

Initial sentences imposed on 24 December 2002 9 The facts relating to these offences were as follows.

On 18 March 2002, premises were entered at Guildford. A sliding door at the side of the house had had a fly screen removed. A side window was smashed and the offender entered a room which was locked, entered a manhole in the ceiling and smashed the gyprock above the bedroom where he obtained a large amount of jewellery and a handbag. Property in excess of $8000 was taken. The respondent was identified by fingerprints.

On 23 March 2002, the respondent was seen at some units jumping from the first floor balcony by the owner. Fingerprints at the scene were matched with his and he was charged with attempt to break and enter.

Counts 3, 4 and 5: possess prohibited drug 7 May 2002; break and enter with intent 7 May 2002 (two counts)

On 7 May 2002, the respondent smashed the rear ground floor window of unit 1 at Casula, climbed through and searched for property. He removed a manhole cover and gained access to the roof by removing tiles. He gained access to unit 2, which was vacant. He was spoken to by police walking away from the unit, and had cannabis in his possession. He admitted having entered the units with intent to steal.

Count 6: steal property in dwelling house 8 May 2002

On 8 or 9 May 2002, the respondent stole property from a dwelling house at which he was working with his brother-in-law who was contracted to paint the premises. The respondent stole jewellery in excess of $5000, a cheque and a wallet. The jewellery was located but the other property was not.

Counts 7and 8: give false name 19 May 2002; possess prohibited drug 19 May 2002

On 19 May 2002, the respondent was seen by police in a motor vehicle and gave a false name. He had drugs on his person.

On 22 October 2002, the respondent was seen by police with a camcorder which was suspected of being stolen.

On 29 October 2002, the respondent was seen by police and had cannabis in his possession.

Sentences 10 The property offences mentioned above were dealt with summarily by Milson DCJ. The maximum sentence on summary conviction for each such offence was two years' imprisonment or a fine or both. 11 The maximum sentence for the drug offences dealt with on that occasion was imprisonment for two years and for the offence of giving a false name a fine of $220. 12 The initial sentences imposed for these offences were as follows: Counts 1, 2, 4 & 5 imprisonment for 12 months Counts 3, 8 & 10 imprisonment for one month Count 6 imprisonment for one year ten months and one week Count 7 fined $100 Count 9 imprisonment for six months

13 The sentences were suspended for the duration of the respondent's Drug Court programme. His Honour said that the sentences would be served concurrently but for suspension.

Initial sentence imposed on 5 May 2003 14 The facts relating to the offence dealt with on this occasion were as follows. Count 11: break and enter with intent 27 February 2003

On 27 February 2003, at about 9:30 am the respondent entered the premises at Cabramatta and bent back the screen door to open it. He then kicked the wooden door off its hinges and entered the premises. The owner returned and saw him there. He fled and was arrested by police nearby.

Sentence 15 This matter was dealt with on indictment before Milson DCJ. The maximum sentence was imprisonment for ten years. 16 The initial sentence imposed for this offence was imprisonment for two years, to be served consecutively at the expiration of the sentence in relation to count 6. 17 Again, the sentence was suspended for the duration of the Drug Court programme.

18 These are the sentences which are now the subject of appeal by the Crown. 19 The sentences include final sentences on reassessment of the initial sentences imposed on 24 December 2002 in relation to counts 1-10, a final sentence on reassessment of the initial sentence imposed on 5 May 2003 in relation to count 11, and a sentence for the new offence in relation to count 12 (for which there was no prior initial sentence). 20 The sentences imposed on 24 December 2002 and 5 May 2003 were initial sentences within the meaning of s12. Accordingly, when dealing with the respondent on 20 November 2003, the Drug Court was precluded by s12(4) from imposing final sentences in relations to counts 1-11 exceeding the respective sentences initially imposed for those offences. 21 The court was also precluded from increasing the effective aggregate sentence one year ten months and one week in relation to counts 1-10 by disturbing the element of concurrence to which I have referred: Toman [2004] NSWCCA 31. 22 Similarly, when reconsidering the initial sentence imposed on 5 May 2003 in relation to count 11, the Drug Court was precluded from imposing a final sentence in excess of two years. 23 This court is subject to the same constraints: Toman. 24 Count 12 was, and is, in a different category. There was no initial sentence in relation to that offence. Section 12(4) did not apply. Accordingly, the respondent was to be sentenced for the offence in relation to that count under ordinary sentencing principles unaffected by anything in the Drug Court Act.

25 The larceny offence to which count 12 relates was dealt with summarily on 20 November 2003. On summary conviction, the maximum penalty for that offence was imprisonment for one year or a fine or both.

26 The facts relating to the new offence were as follows.

On 16 August 2003, the respondent was found in a luggage compartment of a bus by the driver and he ran away. He was chased by the driver and an off duty police officer and captured. He had in his possession the bus driver's wallet and two cheque books, one in the name of the bus driver and one in the name of the coach company. He admitted that he had stolen the property and that he intended using the proceeds to buy drugs. He was taken to the police station and made full admissions.

Subjective considerations 27 It was now necessary for Barnett DCJ to take into account the full array of subjective considerations bearing on the sentencing process. 28 A further offence, committed while on the Drug Court programme, was relevant as a matter of history. On 20 June 2003, the respondent committed the offence of having goods in custody. He was dealt with in the Local Court on 11 July 2003. 29 Following the offence committed on 27 February 2003, the respondent was found eligible to remain in the programme despite the breach. However, when he was arrested on 16 August 2003, following the offence committed on that date, his Drug Court programme was terminated. The respondent then remained in custody until 20 November 2003 when the final sentences were imposed. 30 In his remarks on sentence of 20 November 2003, Barnett DCJ acknowledged positive subjective considerations. He noted the contents of various reports indicating that the respondent was easily led, suffered depression, possessed low average intelligence, that he was supported by his family and had expressed remorse. 31 The respondent was young at the time of final sentence being then 20 years of age. Prior to the sentences imposed on 20 November 2003 he had never been sentenced to a term of imprisonment although he had served time in custody, as we have mentioned. His Honour found special circumstances. 32 There was only one matter on the respondent's record prior to those dealt with by the Drug Court which was dealt with in the Children's Court and for which a community service order was imposed. 33 The respondent had been in custody in relation to certain of these offences for some 55 days before entering the Drug Court programme. He had also served some 83 days in custody since commencement of the programme for sanctions and otherwise, a total of some 138 days or approximately four and half months. The sentences imposed on 20 November 2003 took that time in custody into account. Additionally, there were conditions impinging on freedom of movement and action during the currency of the programme.

The sentences 34 Barnett DCJ dealt with the offences in two groups. In relation to counts 1-10, the final sentences were as follows: Counts 1, 2, 4 & 5 Imprisonment for 12 months to date from 16 August 2003 and expire 15 August 2004 Non-parole period of six months to expire 15 February 2004 Counts 3, 8 & 10 Imprisonment for one month to date from 16 August 2003 and expire 15 September 2003 Count 6 Imprisonment for 16 months to date from 16 August 2003 and expire 15 December 2004 Non-parole period of six months to expire 15 February 2004 Count 7 Fine of $100 confirmed Count 9 Imprisonment for six months to date from 16 August 2003 and expire 15 February 2004

35 It may be noted that all the sentences of imprisonment in this set commenced on 16 August 2003 (the date on which the applicant was taken into custody following the offence in relation to count 12, bail refused). Accordingly, the sentences in relation to counts 1-5 and 7-10 were subsumed under the sentence for count 6, being imprisonment for one year and four months with a non-parole period of six months. 36 This represented a reduction of six months and one week relative to the initial effective aggregate sentence in relation to counts 1 -10. 37 His Honour then imposed a final sentence in relation to count 11 and a sentence in relation to count 12, as follows. Count 11 Imprisonment for 20 months to date from 15 February 2004 and expire 14 October 2005 Non-parole period of two months to expire 14 April 2004 Count 12 Imprisonment for two months to date from 15 February 2004 and expire 14 April 2004

38 It may be noted that the sentences for these counts commenced on the date for expiry of the non-parole period under the first group of sentences. 39 The final sentence in relation to count 11 represented a reduction of four months relative to the initial sentence in relation to that count. 40 The aggregate effective sentence for all sentences imposed on 20 November 2003, was two years and two months with a non-parole period of eight months. 41 It may be noted however that the sentence in relation to count 12 added nothing to the effective aggregate sentence in relation to counts 1-11.

The appeal 42 The principles relating to appeals by the Crown against sentence were summarised by Wood CJ at CL in Wall [2002] NSWCCA 42, at [70]: The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s 19B of the Crimes Act 1914 . Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62. 43 The appeal was against the sentences imposed on 20 November 2003. There was no appeal against the sentences imposed on 24 December 2002 and 5 May 2003.

The Crown case on appeal 44 It was submitted that the sentences imposed on 20 November 2003 in the first category (counts 1-11) were manifestly inadequate in failing to reflect the objective seriousness of the offences with particular regard to the sentence imposed in relation to count 11. It was submitted that insufficient regard was had to the fact that this was an offence committed during the programme, demonstrating, it was said, a continuing attitude of disobedience, a need for special and general deterrence and for public protection. Further, in relation to that count, it was said that the non-parole period of two months in relation to a sentence of one year and eight months was manifestly inadequate.

Respondent's submissions on appeal 45 On behalf of the respondent, it was submitted that the sentences were not manifestly inadequate in the circumstances of the case. 46 There were also particular reasons, it was said, why this court should decline to intervene in any event. First, it was said that most of the offences concerned were dealt with summarily. The implication was that appeal to this court against those sentences was inapposite. 47 Secondly, the appeal was not instituted until two months and ten days after the sentences were imposed on 20 November 2003. A consequence was that the appeal came on for hearing just one day before the date on which the respondent would be entitled to be released under the regime of sentences which are the subject of appeal. 48 Thirdly, the respondent was well prepared for his anticipated release. The Crown, properly, did not object to an affidavit by the respondent being read in that regard. For the respondent had completed a course in occupational health and safety in preparation for employment. He had completed a short bar attendants' course. He was attending a course for stress management. He had undertaken tuition in numeracy. He had completed a programme for alcohol and other drug users. He planned to live with his parents when released from prison. He anticipated obtaining employment for a short time with his brother-in-law and then proposed to study at TAFE to obtain formal qualifications as a ceramic tiler, having done such work previously.

Decision on appeal 49 The court was not satisfied that the final sentences imposed in relation to counts 1-10 were manifestly inadequate. The non-parole period of six months was the focus of the Crown's attack. That, however, was fixed after taking into account some four and half months in custody which was not included in the sentences. The total time to be served was, accordingly, approximately ten and a half months. This was lenient but not so inadequate as to be appealable by Crown appeal. 50 The sentence in relation to count 11 had the appearance of inadequacy, particularly in relation to the non parole period of two months. That, however, was to be accounted for because of the weight which his Honour legitimately wished to give to special circumstances. It was preferable to look at the effective aggregate sentence for counts 1-11, which was lenient but, again, not manifestly inadequate. That being the situation, intervention, particularly on a Crown appeal, was not warranted. 51 The criticism in relation to count 12 was valid. As we have recorded, this was a serious and significant offence, which was committed on a separate occasion, but for which no additional penalty was imposed. However, a broader view had again to be taken. We did not regard the effective aggregate sentence in relation to the total suite of sentences imposed on 20 November 2004 as being so manifestly inadequate as to warrant intervention on a Crown appeal. 52 Of the further discretionary considerations mentioned by counsel for the respondent, we gave weight to the delay by the Crown in instituting the appeal with the consequence that, on the eve of the release date, a young offender, who has worked hard at rehabilitation while in prison, was faced with the prospect of having his time in gaol extended. 53 For these reasons, the appeal was dismissed. -oOo-

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