Regina v Toman

LOWER COURT Drug Court/District Court JURISDICTION : LOWER COURT 2002/0244 FILE NUMBER(S) : LOWER COURT Barnett DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60294/03

GROVE J SULLY J BELL J

1 GROVE J: This is an appeal by the Director of Public Prosecutions, notice of which contains these terms: "……. . that I desire to appeal to the Court of Criminal Appeal against a sentence pronounced by his Honour Judge Barnett, a judge of the District Court of New South Wales, at the Drug Court on 24 July 2003 when one William John TOMAN appeared for final sentence on charges numbered 1 to 9 hereunder and for sentence on charges numbered 10 and 11 hereunder to all of which charges he had pleaded guilty: 1. break enter and steal 2. break enter and steal 3. break enter and steal 4. break enter and steal 5. break enter and steal 6. escape lawful custody 7. break enter and steal 8. unlicensed driver 9. negligent driving 10. break enter and steal 11. break enter and steal AND for the said offence he was sentenced as follows: 1. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003. 2. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003 3. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003 4. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003 5. three years and eleven months imprisonment with a non-parole period of twelve months to date from 22 May 2003 6. six months imprisonment to date from 23 November 2003 7. eighteen months imprisonment with a non-parole period of twelve months to date from 22 May 2003 8. a fine of $100.00 9. a fine of $100.00 10. four years imprisonment with a non-parole period of twelve months to date from 22 May 2003. 11. four years imprisonment with a non-parole period of twelve months to date from 22 May 2003. ON THE GROUND that the said sentence is manifestly inadequate."

THE CONSTITUTION OF THE COURT OF CRIMINAL APPEAL 2 The Court is constituted pursuant to s3 of the Criminal Appeal Act 1912 (the Act): "3 (1) The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct. " 3 Provision in s6AA of the Act for the hearing of some appeals by two judges is not presently relevant. 4 The right of the Director of Public Prosecutions to appeal against sentence is vested by s5D(1): "5D (1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper. " 5 The Crown was a party to the proceedings against the respondent in the Drug Court. It was not suggested that this was not so. The Act has a specific provision relating to appeals from the Drug Court: "5AF (1) Section 5AA applies to and in respect of a person convicted of an offence by the Drug Court in the exercise of its jurisdiction under Part 2 of the Drug Court Act 1998 (in relation only to a final sentence determined by the Court under section 12 of that Act) in the same way as it applies to a person referred to in section 5AA(1). (2) For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the Drug Court. (3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct." 6 Section 5AA is incorporated, as just set out, in s5AF by reference and it makes provision for appeals brought by persons who are convicted or against whom orders have been made. There is no reference in s5AA to appeals by the Crown (brought by the Attorney General or the Director of Public Prosecutions): "5AA (1) A person (a) convicted of an offence; or (b) against whom an order to pay any costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. (2) For the purposes of this Act, a person acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person, shall be deemed to be a person convicted, and any order to keep the person in custody shall be deemed to be a sentence." 7 Neither Counsel appearing in the present appeal suggested that the Court should be constituted other than in accordance with s3, that is to say, by three judges. Their stance in that regard was correct. 8 The result of the statutory construct is that an appeal from the Drug Court by the prosecution will be heard by a bench of three judges whereas an appeal by an offender will be heard by a single judge as prescribed by s5AF(3). 9 The second reading speech upon the bill which became the Drug Court Act by the Hon R.D. Dyer on behalf of the Attorney General included these references to appeals: "There will be no right of appeal from decisions of the Drug Court as to eligibility, treatment option, sanctions, or other program decisions.' ……….. The Government makes no apologies for changing the rights and responsibilities of offenders once they enter the program as, amongst other things, the potential benefits to offenders from participation in the program are enormous. Of course, the Drug Court program will allow appeals on sentence. These will be to a single judge of the Supreme Court. Such appeals are rightly retained as they relate more to a person's due process rights at large than to internal decision made by the Drug Court." 10 The legislation is effective in implementing the stated intentions. Neither the Drug Court Act nor the speech makes reference to appeals against sentence by the Crown. 11 This distinction between constitution of the court to hear an appeal by an offender and an appeal by the Crown in respect of the same (final) sentence might be considered anomalous and, as was indicated at the hearing would be done, it is drawn to attention.

THE OFFENCES OF THE RESPONDENT 12 As can be inferred from the terms of the Notice of Appeal, the charges against the respondent can be divided into two categories. The first category (charges 1 to 9) came before the Drug Court (constituted by his Honour Judge Barnett) on 19 December 2002 when the respondent sought admission into a drug program. Sentence was imposed in respect of the nine charges. These sentences were imposed pursuant to s7(2A) of the Drug Court Act 1998 (to which statute unreferenced sections hereafter refer) and were by definition "initial sentences" pursuant to s4(1). A mandatory order for suspension of the sentences was made (s7(3)(b)) upon his Honour's order that the respondent participate in the relevant program. 13 After appearance at the Drug Court the respondent attended a clinic for the purpose of prescription of some medication and while there he met an acquaintance who gave him two tablets, possibly Rivotril, as a "celebratory gesture". The respondent ingested the tablets in combination with his medication and he became "blurred". He did not attend, as required, to enter the program. 14 Some time before midnight on 19 December 2002 the respondent broke and entered premises at Parramatta and stole a bank issued credit card. He went to a shopping centre which, the court was informed, was open overnight for the purpose of Christmas shopping. The respondent presented the card as payment for various purchases but on a final occasion, the store operative noted irregularities and the respondent was taken and held by shopping centre security at about 12 am on 20 December. Police had been contacted and they took the respondent into custody. 15 Investigations also identified the respondent as the perpetrator of breaking entering and stealing at a Granville address. This offence had occurred on 17 July 2001. Charges referrable to those two breaking and entering offences were the subject of a new indictment to which the respondent pleaded guilty. Offences of possessing a housebreaking implement and dishonestly obtaining goods by deception (using the stolen credit card) were taken into account on a Form 1. 16 The second category of offence (charges 10 and 11 in the Director of Public Prosecution's Notice of Appeal) were the offences on this indictment which was not dealt with in terms of the Drug Court Act.

INITIAL AND FINAL SENTENCE IN THE DRUG COURT 17 On 9 January 2003 the respondent's Drug Court program was terminated by Judge Milson (s10(1)(b)). On 24 July 2003 he appeared before Barnett DCJ, who exercised the jurisdiction both of the Drug Court and the District Court, for final sentence in respect of the offences in the first category which I have mentioned and for sentence in respect of those in the second category. 18 In imposing final sentence for the first category the learned judge was bound to apply a prescription in s12(4) namely: "(4) 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." 19 In the circumstances his Honour determined that none of the initial sentences should be reduced and final sentences were imposed in identical terms. Those sentences were therefore imposed at the upper limit of severity permitted by s12(4).

THE CROWN APPEAL AGAINST THE SENTENCES AFFECTED BY THE DRUG COURT ACT 20 As recited above, the Notice of Appeal is (in respect of the first category of sentences) exclusively directed to the final sentences. There is no reference to the initial sentences. This Court is, equally with a judge at first instance, bound by the restriction legislated in s12(4). The sentences were the maximum that could be imposed by that Court or by this Court. 21 The possibility of this being the case was raised during the hearing of the appeal and supplementary submission has been received on this aspect from the Crown. It is suggested that: "It may be that the quantum of the initial sentence is not considered appealable but that some aspect of the final sentence, such as the absence of accumulation, is." 22 I do not construe s12(4) so as to enable, by some manipulation of orders relating to of final sentence, an effective increase in the time which an offender will be kept in custody beyond that which would be the consequence of serving what has been specified as the initial sentence. 23 The supplementary submission continued: "Arguably the Crown could have appealed against that aspect of the sentence at the time it (initial sentence) was imposed. Realistically however the failure to comply had no practical effect because of the inevitable suspension of the sentences. To have appealed at that point is arguably contrary to the purpose of the Drug Court Act and irreconcilable with absence of the offender's right of appeal against the initial sentence. While it is arguable that the failure to appeal the initial sentence creates an undesirable element of doubt in the offender's approach to the programme it is fairer that the Crown only appeal once and that the appropriate time to appeal is when all relevant information is available to the Court. The latter position only arises after the imposition of the final sentence". 24 It is true that, if the offender is to be admitted to a program, the initial sentence will inevitably be suspended (s7(3)(b)). The Crown submission was supported by a submission by counsel for the respondent to the extent that it conceded a right of the Crown to appeal against initial sentence in addition to a right to appeal against final sentence. However, it was submitted that where no appeal is brought against that initial sentence, the Crown cannot in an appeal against final sentence seek to impeach the initial sentence. No application was made by the Crown to amend the terms of its Notice of Appeal which, as recited above, was expressed to challenge final sentence. 25 The limitation on appeal by an offender in s5AF of the Criminal Appeal Act restricts challenge to final sentence whereas there is no special provision applicable to a Crown appeal which is brought pursuant to s5D of that Act. It was therefore submitted that there was a discernible approach reflecting "the paramountcy of the final sentence and the largely administrative function of the initial sentence." 26 Initial sentence is defined as "any sentence imposed on a person in accordance with section 7 or 8AB, and includes any sentence that is added to the initial sentence in accordance with section 8AC" (s4). All of ss7, 8AB and 8AC specify that the person dealt with under those provisions is to be convicted and sentenced in accordance with the Crimes (Sentencing Procedure) Act 1999. See s7(2A), s8AB(3) and s8AC(3). 27 The imposition of initial sentence is an act of judicial character, not of administrative character. 28 There is nowhere to be found any limitation on appeal by the Crown asserting inadequacy of initial sentence and, whilst it is understandable that such may be considered awkward and potentially nugatory having regard to the possibility that an offender will satisfactorily complete the program and be dealt with more leniently when coming for final sentence, s12(4) operates to prevent any increase of final sentence so as to exceed the initial sentence. THE EFFECTIVE SENTENCES 29 The restriction legislated by s12(4) which applies to offences in the first category does not apply to those in the second. 30 It is necessary however to look at the overall sentences in order to consider the adequacy of those imposed for the second category of offences. 31 Previously, the respondent was sentenced in Sydney District Court to a term of imprisonment of two and half years with a non-parole period of eighteen months dating from 10 April 2001. His parole date was 9 October 2002. On 12 July 2001 he escaped by walking away from a situation of minimum security. He was re-arrested on 25 August 2001. The offences in the first category were the escape and others committed whilst unlawfully at large. He was in custody from 25 August 2001 until 19 December 2002 when Barnett DCJ, sitting as the Drug Court imposed initial sentences, made the order for his admission to a drug programme and suspended those sentences. 32 When appearing for final sentence on 24 July 2003 the initial sentence for the escape was confirmed being imprisonment for six months to date from 23 November 2002 and to expire on 23 May 2003. Save charges 8 and 9, upon which fines had been imposed, the initial sentences, confirmed as final sentences on charges 1 to 5 and charge 7, were directed to commence on 22 May 2003. A parole eligibility date of 21 May 2004 was specified. 33 On charges 10 and 11 (the second category) he was sentenced to four years imprisonment from 22 May 2003 with a non-parole period of twelve months. His parole eligibility date remained unaltered at 21 May 2004.

34 Although, in my view, the Court has no power to intervene to increase the final sentences imposed in respect of the offences in the first category, they remain relevant as part of the extant record of the respondent available to be taken into account in determining whether he may not receive leniency which might otherwise be granted to him. Relevant to that consideration as well are offences on the respondent's record going back to being dealt with in the Children's Court in 1993. 35 In assessing the sentences imposed for the second category it was also appropriate to bear in mind the initial sentences (now confirmed as final sentences) in connection with applying the principle conveniently referred to as "totality".

THE FACTS AND SUBJECTIVE MATTERS 36 The facts of the offences in the second category are sketched above. A little elaboration is apt. Shortly prior to midnight on the day he had been given the suspended initial sentences and directed to the drug program by Barnett DCJ, the respondent presented a credit card for payment for some sports shoes at a shop at the Westfield Mall at Parramatta. A call was made to the credit card centre and the respondent was asked to speak to the operator. He did so and was heard to say "Cut up the card", after which he hung up the telephone and left. He was seen running out exit doors but was detained. On his journey he dropped a screwdriver. 37 Investigations showed the use of the card between 10 and 11 pm to purchase jeans, shirts and a screwdriver. The authorized holder of the card was identified and contacted. The card should have been at her home. Her husband was at the home and at the time awaiting police to whom he had reported an apparent break and enter. The main bedroom sliding door had been broken. 38 Later investigation demonstrated that the respondent was the perpetrator of another break and enter at Granville which had taken place on 27 July 2001. Cash, jewellery and a mobile phone valued at $2,550 had been taken. Repair to damage caused by the break was estimated to cost $1,000. 39 The respondent had a disrupted childhood. His mother had a son and daughter from another marriage. She married the respondent's father thereafter. His half siblings reportedly had significant problems, the brother with offending and the sister with self-harming behaviour. His mother was French and the family resided in France for about two years. The marriage failed and the respondent stayed with his mother in the absence of his father from about the age of ten. 40 His mother owned and operated a restaurant in Kings Cross. He spent long hours unsupervised whilst she struggled to run the restaurant. He truanted from school. There were events, including a home invasion when his mother was threatened by having a knife put to her throat. This seemingly may have had some connection with an assertion that she was hiding drugs for his elder brother. The mother died of cancer in 1999. 41 The respondent has some contact with his father who now resides in Queensland. A letter addressed to the presiding judge dated 30 June 2003 confessed that he (the father) was an alcoholic and had been "a very poor parent and therefore feel part of the reason (the respondent) is before the court". 42 He expressed a hope that his son could be "de-institutionalized". 43 As at April 2003, the respondent had spent seven and half years of the last ten in custody. That proportion now approaches eight and half years of the last eleven. 44 Undoubtedly his criminal behaviour is significantly associated with a drug habit. A report from Ms Rhonda Danylenko, the alcohol and other drug worker at MRRC Silverwater, dated 23 April 2003 includes: "Finally, Mr Toman has received no institutional charges this time in custody and has always presented stable during contact with the writer. Mr Toman is very much aware that he is responsible for his behaviour and that if he is to remain outside, long term, he will need to commit himself at a deeper level." 45 Her report traces the respondent's descent into illicit drug use. He started with excessive alcohol at age fifteen, used cannabis between the ages of seventeen and twenty three, and at twenty one had started smoking heroin. By aged twenty three he "graduated" to injecting heroin and by twenty five he was injecting cocaine. 46 In 2000 and 2002 he had some methadone and buprenophine treatment. He has never been admitted to a therapeutic centre such as WHOS, the William Booth Programme or Odyssey House.

INADEQUACY 47 Whilst, for reasons given, it is not open to the Crown to challenge the quantum of final sentence for the first category of offence and I acknowledge that the argument was put so as to encompass it, I understand the gravamen of complaint to be directed to the very short non-parole period which, leaving to one side the compulsory accumulation of the sentence for escape, effectively set the same non-parole period for the first and second category offences, that is a period expiring on 21 May 2004. Including the imposition for escape the overall effective term can be calculated as imprisonment for four years five months twenty nine days, with a non-parole period of seventeen months twenty nine days. 48 I have already stated that I consider the power of this Court is limited to intervention in respect of the sentences for the second category of offences, that is four years imprisonment to be served concurrently on each of the two counts with a non-parole period of twelve months. In the absence of any other circumstances, I would assess the imposition as manifestly inadequate in terms of the non-parole period set. I do not consider the head sentence of four years imprisonment so to be. 49 This Court has a residual discretion to dismiss a Crown appeal such as the present and I would exercise that discretion in this case for a combination of reasons. 50 The very great proportion of more than the last decade which this comparatively young offender has spent in custody suggests a real risk that he would re-offend. Should that occur he is at equal risk of being required to serve the head sentence of four years which I do not consider inadequate. If released to parole he would very much be his own keeper and the risk of further lengthy incarceration would, I estimate, be a significant deterrent.

51 I infer that this may well be what Barnett DCJ had in mind, that is a proper and adequate head sentence but a lenient, in my view overly lenient, non-parole period but a chance for the respondent to see if he can lead a law abiding life as he seems to have persuaded the alcohol and other drugs worker he appreciates that he needs to do. Despite his rejection of the opportunity received from the Drug Court, it is possible that he may on release appreciate now the wisdom of seeking help from one of the rehabilitation programmes, in none of which to date has he engaged. An affidavit of the respondent received for use if resentence was to be undertaken, does mention that parole authorities, given the nearness of release date currently fixed, have made tentative arrangements for his reception into a twelve month residential program at Cecil O'Neill House run by the Society of St Vincent de Paul. 52 Although the Notice of Crown Appeal followed promptly the impositions of final sentence and sentence for the second category offences, the respondent would have been for a significant period conscious that the initial sentences would, even if confirmed as final sentences, be at a statutory "ceiling". 53 In addition, in the ordinary course this appeal came on for hearing on 6 February 2004. As already noted, the eligibility date for parole is becoming imminent, that is 21 May next. 54 Although I have concluded that the setting of the non-parole period reflects inadequacy, I have also concluded that this is not a case in which I would intervene to vary the sentences and orders made in the court of first instance. 55 I would in the exercise of this Court's discretion dismiss the Crown appeal. 56 SULLY J: I agree with Grove J. 57 BELL J: I agree with Grove J.

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