REGINA v. AZAR [2000] NSWCCA 26

No. 60342 of 1998 CORAM: GROVE, J. GREG JAMES, J. MONDAY 21 FEBRUARY 2000

1 GROVE, J: The Court is in a position to give judgment. I will ask Greg James, J. to give the first judgment. 2 GREG JAMES, J: Application for leave to appeal against sentence is brought in respect of sentences imposed by his Honour Judge Job QC. in the District Court at Newcastle on 24 June 1998. His Honour imposed sentences in respect of three counts on an indictment, two of them being counts of break and enter, each punishable by a maximum sentence of 14 years penal servitude, and one count of receiving under s.188 of the Crimes Act 1900, an offence punishable by a maximum penalty of 10 years penal servitude. In addition there were some 16 matters taken into account on a Form 1. These comprised offences of breaking and entering and larceny, but mainly of offences of the receiving of stolen goods. The offences included two offences of supply prohibited drugs, that is obtaining stolen goods in exchange for cannabis. There were also offences of possessing housebreaking implements and entering land with intent to steal and possessing stolen goods. 3 In respect of those offences his Honour imposed on the receiving count in the indictment a period of four years penal servitude by way of fixed term dating from 7 July 1997 on which date the applicant entered into custody for these offences, and on the first offence of break, enter and steal, taking into account the matters contained in the Form 1, his Honour sentenced the applicant to a total term of eight years penal servitude to commence at the expiration of the fixed term for the receiving offence, ie., 6 July 2009. For the second offence of break, enter and steal his Honour appears to have imposed a similar sentence, the effect being that the total sentences involved a sentence of some nine years minimum term and an additional term of three years, that total sentence commencing on 7 July 1997. 4 The sentences were imposed upon the applicant in the light of his extensive prior record. His Honour, when dealing with that matter, referred to the frank evidence of the applicant before him, that he was by occupation a thief. He has had little or no other work throughout his life. His prior criminal record commences with offences of dishonesty when he was a child in 1972. It has extended through many many offences since. Most recently, as his Honour observed, he had prior to this offence been sentenced in the District Court at Parramatta on 21 May 1991 for numerous offences of dishonesty, to a term of penal servitude, presumably for 10 years to date from 10 July 1990 with a minimum term of five years. He had had previous substantial sentences of imprisonment for dishonesty offences. 5 He had, his Honour noted, committed offences whilst on parole and in particular the prisoner was on parole when he had committed certain of the offences here alleged. His Honour noted that the prisoner has had a problem with drugs, that he became addicted to drugs whilst in prison and on release was on methadone and that the evidence showed that whilst he was before the court to be dealt with by his Honour, he was still on methadone. It was in that context, including the leniency which his Honour found that had been extended to the prisoner in the past, that his Honour considered the principles referred to the passage in the judgment of the High Court in Veen v. The Queen (No 2) (1988) 164 CLR 465, which he quoted in his remarks on sentence, in particular, drawing the distinction between an "uncharacteristic aberration, or the manifestation of a continuing attitude of disobedience to the law". That passage refers to the previous history of a prisoner coming forward for sentence as available to "illuminate the moral culpability of the offender ... or to show a dangerous propensity or a need to impose condign punishment". His Honour expressed the view that the passage was particularly apt in this case. 6 Although his Honour did not expressly say so it seems as though his Honour was of the view that the prior circumstances of this applicant called for a more severe penalty in the light of his prior record, as reflecting on his moral culpability and as showing a dangerous propensity. His Honour went on to observe that although the prisoner did "appear to have quite an engaging personality, his real problem was he just cannot keep his hands off other people's property". 7 The prisoner's parole had been revoked as a consequence of his arrest for this offence and the situation, as far as his prior sentence is concerned, is that he is not due for release until 27 November 2000. Thus the sentence that was passed to commence on 7 July 1997, is to that extent concurrent with the sentence that the prisoner was to serve for his prior offences. 8 In evidence before his Honour, as well as the detail of the circumstances of the commission of these various offences, which, since they are set out in his Honour's remarks on sentence, are matters to which I need not turn in detail, was evidence that the prisoner had now a family involving a daughter and a son for whom he was greatly concerned and a wife who was supportive of him. He expressed to his Honour on sentencing his concern for the effect of his sentence on his family and his relationships with them. 9 There was evidence before his Honour that he had come to commit the offences by reason of having, during a period of heroin addiction, fallen into debt to a drug dealer who had supplied him with heroin whilst he was in gaol. The prisoner had given evidence that that dealer, who is now dead, required him to meet a debt of some $17,000. 10 His Honour referred to the evidence that the dealer pursued him, threatened him, even at one stage making him dig a grave and stand in it as a means of seeking to compel him to pay that debt. 11 Before his Honour the prisoner expressed the view that he wished to remain out of gaol and would prefer to sleep in the gutter rather than remain in gaol. His Honour noted the current support of the applicant's family. However, his Honour did conclude, in my view, that it was necessary to impose a severe sentence in order to guard against what his Honour saw as the danger to the community arising from the prisoner's recidivism. 12 Application was made to us to receive in evidence the affidavits of Heather Anderson sworn 18 February 2000, and of the applicant, affirmed 20 February 2000, which provided additional material to that which was before his Honour. The affidavit of Heather Anderson annexes the discharge summary and clinical notes in respect of two of the applicant's stays in B Ward at Long Bay Hospital, and two reports of Associate Professor Andrew Lloyd concerning the applicant's current medical condition. Those reports disclose, as was summarised in the helpful written submissions provided to us by the applicant's counsel, that the applicant is Hepatitis C positive and has developed an arthritis condition and that those conditions have become active and chronic, that the disease has now occasioned "quite disabling musculoskeletal pain and ongoing joint inflammation" and that there is a high probability that the symptoms will continue into the foreseeable future resulting in the applicant now being, and for the future being "functionally disabled by the combination of pain, swelling and limited range of movement of the affected joints". 13 The affidavit of the applicant discloses that although he had been diagnosed with Hepatitis C since 1993 and there was some reference to his medical condition before his Honour at the time of sentencing, nonetheless subsequent to sentence, but in consequence of the matters brought forward at that time, his latent conditions have now progressed towards a dramatic impediment of mobility. The applicant says that he becomes overly tired, has swollen legs with pain in the joints and as a result is suffering from such immobility that he has not returned to the main section of the gaol is experiencing difficulty with visits from his family spends a lot of time bedridden and due to his immobility and vulnerability in gaol, will spend the balance of his sentence either in the hospital section or the section for the aged and infirm. He is presently detained in the aged and frail special ward unit. His condition was patent on his presentation before us on the appeal. The Crown did not seek to challenge any of this material. 14 Although it was not before his Honour, nonetheless it appears to me that this court should have regard to the material as it falls within the principles that have been enunciated in this court on a number of occasions, and most notably in Regina v. Bailey (1988) 35 ACR 458 at 462. It is clear that the prisoner will, as a result of the unforeseen extent of matters the existence of which, but not the extent of which, were known preceding sentence, find the circumstances of his confinement significantly more burdensome than the ordinary inmate, and his Honour was, with respect to that matter, led into error by the material before him as failing to draw attention to this matters. The applicant will be suffering under disabilities in this confinement a good deal more than was expected by the trial judge when he came to impose sentence. 15 When the newly appreciated medical condition of the applicant involving, as it does, a physical incapacity such as to severely limit his physical abilities to commit most crimes, is considered in conjunction with his having brought his drug addiction under control so that it is not a factor adversely affecting the prospects of the applicant's recidivism, and the psychiatric evidence, that was before the trial judge, but to which he does not appear to have adverted in any great detail or to which he has not given great weight, that the applicant, now is eager to entertain the idea of counselling or psychotherapy, notwithstanding that it could be long and distressing, it seems to me that a real basis has been provided to intervene. 16 It was urged that the court should have regard to the motivation for the applicant's offence as somehow mitigating the culpability for the crime. True it is that the applicant did not go out to commit a crime to feed an addiction directly but the participation in the life style of the addict could be expected eventually to lead inevitably to such a relationship with those also involved in that life as to expose the applicant to the likelihood of committing crime for the purposes of paying for drugs, whether they be his drugs or the drugs of others. One can have regard to the vulnerability of the applicant arising from the addiction and one might extend compassion in those circumstances but such motivation as is here alleged does not, it appears to me, really differ in kind from that of the addict committing the crime to feed the addiction. For my part I would prefer to look at that factor as playing its part in the total complex of matters to be considered in this applicant's special case. In the event that this court comes to the view that by reason of the admission of the additional material that and the other factors to which counsel has directed us, might be reflected in the outcome on re-sentencing. 17 I have, for the reasons that I have given, come to the conclusion that the court should intervene and re-sentence. In that regard our attention was drawn to matters that were said to show special circumstances. Plainly in this applicant's case there are things that when properly considered, do point to the applicant requiring particular support and assistance but it does not seem to me in the context of the sentence that in my view would be appropriate to replace that passed by the trial judge, they are such that there need be in additional lengthening of the additional term. 18 The structure of the sentences as passed was such as to permit this court when intervening to do so particularly in respect of the sentence for receiving. The sentences imposed on the break and enter offences were longer than had been previously passed upon the applicant for the similar previous offence by Viney, DCJ. I would not consider it appropriate to reduce any sentence passed upon him for those offences in this context below that imposed upon him by Viney, DCJ. However, in my view the overall sentence does require reduction. To achieve that goal, I would propose a sentence on the count of receiving of a fixed term of two years penal servitude to date from 7 July 1997 and in respect of the break and enter counts, I propose concurrent sentences each of a minimum term of five years to commence at the expiration of the fixed term and an additional term of three years to commence on 7 July 2004 and to expire on 6 July 2007. 19 The formal orders I propose are:- (a) leave to appeal granted; (b) appeal upheld; (c) quash the sentences passed in the District Court; (d) in lieu thereof, sentence the applicant to imprisonment for a fixed term of two years on the receiving count. Such term to commence 7 July 1997 and to expire 6 July 1999. On the two counts of break and enter, sentence the appellant to imprisonment for eight years cumulative upon the fixed term already imposed but concurrent between themselves, comprising a minimum term of five years to commence 7 July 1999 and to expire 6 July 2004 and an additional term of three years to commence 7 July 2004 and to expire on 6 July 2007. 20 GROVE, J: I agree with the judgment just delivered by Greg James, J. and the structure of the orders which are proposed. We will need to impose imprisonment rather than penal servitude having regard to recent legislation and take into account the matters on the schedule.

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