Willmott v R

Court of Criminal Appeal (NSW)|2016-10-07|Before: Meagher JA, Harrison J, Hulme J

Judgment

MEAGHER JA: I agree with Harrison J.
HARRISON J: The appellant seeks leave to appeal pursuant to s 5AF(3)(a) of the Criminal Appeal Act 1912 against the sentence imposed upon him by his Honour Judge Cloran on 22 February 2016 at the Drug Court in Toronto.
The sentence appealed against is an aggregate sentence of 5 years and 9 months, with a non-parole period of 3 years and 10 months, for twelve offences (two indictable offences and ten summary offences), including offences of break and enter and larceny. The sentence was imposed as a final sentence pursuant to s 12 of the Drug Court Act 1998, following the termination of the appellant's drug program when he left the residential rehabilitation facility he was required to attend and committed further offences.

JURISDICTION

Section 5AF(1)(a) of the Criminal Appeal Act 1912 confers upon a person sentenced by the Drug Court the same right of appeal to the Court of Criminal Appeal as would be available under s 5AA to a person convicted by the Supreme Court in its summary jurisdiction. Leave to appeal is required: s 5AA(1A) of the Criminal Appeal Act.
The Drug Court has jurisdiction to deal with both indictable and summary offences. Its jurisdiction in respect of the latter includes dealing with indictable offences that may be dealt with summarily where no election is made to have the offence dealt with on indictment: s 15(1)(b) of the Drug Court Act. Accordingly, the reference in s 5AF(3)(b) of the Criminal Appeal Act to "a summary offence" would appear to extend to indictable offences dealt with summarily. This is consistent with the approach taken in Moses v R [2015] NSWCCA 218 at [7]. For clarity, such offences are referred to in what follows as "summary offences".
Section 5AF(3)(a) of the Criminal Appeal Act directs that the power of the Court of Criminal Appeal to hear and determine a sentence appeal from the Drug Court concerning an indictable offence is to be exercised by two or three judges as directed by the Chief Justice. Where a sentence for a summary offence is under appeal from the Drug Court, s 5AF(3)(b) provides that the power of this Court 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 unless the judge, on the application of either party or of his or her own motion, considers that the appeal raises matters of principle or it is otherwise in the interests of justice for the appeal to be dealt with by the full Court of Criminal Appeal and notifies the Chief Justice accordingly, in which case the appeal is to be heard and determined by such 3 or more judges of the Supreme Court as the Chief Justice may direct."
As the present appeal concerns an aggregate sentence which was passed for both indictable and summary offences, it is not practicable to determine the appellant's appeal against the summary offences separately from the indictable offences. In these circumstances, the Acting Chief Justice has directed that the appeal against the summary offences be determined by the bench constituted to deal with the indictable offences.

Charges

The appellant indicated pleas of guilty at Central Local Court on 9 July 2015 to two indictable offences, namely: 1. Count 1: Aggravated break and enter with intent to commit a serious indictable offence (larceny) (aggravating factor, knowing person present) contrary to s 113(2) of the Crimes Act 1900. This offence was committed on 25 April 2015; and 2. Count 2: Aggravated break and enter and commit serious indictable offence (larceny) (aggravating factor, knowing person present) contrary to s 112(2) of the Crimes Act. This offence was committed on 10 May 2015.
Following this, the appellant sought to be referred to the Drug Court program. In addition to the two matters on the indictment, the appellant indicated pleas of guilty in respect of the following summary offences: 1. 5 offences of larceny (s 117 of the Crimes Act) where the value was less than $2000; 2. 8 offences of enter inclosed land without lawful excuse (s 4(1)(a) of the Inclosed Lands Protection Act 1901); 3. 3 offences of break, enter and steal where the value was less than $60,000 (s 112(1) of the Crimes Act); 4. an offence of found with intent to commit indictable offence (s 546B of the Crimes Act); 5. an offence of remain in building/land with intent to commit indictable offence (s 114(1)(d) of the Crimes Act); and 6. an offence of enter prescribed premises without lawful excuse (s 4(1)(a) of the Inclosed Lands Protection Act).
The first indictable offence was committed on Anzac Day in 2015. At approximately 9.30am, the appellant entered the Veterans' Affairs Village at Narrabeen. The appellant opened a closed but unlocked screen door of a residence occupied by the victim, a 92 year old woman. The appellant then walked through the garage, opened another screen door and opened the main front door to the residence. The victim heard a noise and saw the appellant at the entrance. The appellant told the victim that he was from maintenance and that he was there to check light switches. The appellant asked the victim to flick light switches for him. The victim made her way to the laundry, hiding her purse on the way as she feared the intentions of the appellant. When the victim asked for identification, the appellant said that he would be back later to show her where he was from.
The second indictable offence occurred on Mother's Day in 2015, again at the Veterans' Affairs Village at Narrabeen. At around 2.50pm, the victim, an 85 year old woman, was seated in her lounge room when the appellant entered the unit via the unlocked front door and then entered her bedroom. The appellant opened both sliding doors of the glass wardrobe, located a handbag on the floor of the wardrobe, and removed a Westpac envelope containing over $1000 in cash. The appellant was seen by a witness in the unit as he was walking out of the bedroom. He made up a story about being in the wrong apartment.
The summary offences related to a number of occasions on which the appellant entered unlocked classrooms in primary schools on the Northern Beaches (Loquat Valley Primary School, Elanora Primary School, Mona Vale Public School and Manly Village Primary School) and other residences and businesses and took, or attempted to take, money from handbags and purses.

Eligibility for Drug Court Program

The proceedings came before the sentencing judge on 17 August 2015 at Toronto Drug Court. On that occasion, the Crown submitted that the appellant was not eligible for inclusion in the Drug Court program because he did not reside in the relevant catchment area. The appellant gave evidence that at the time he was apprehended, he had been residing (contrary to his bail conditions) at 52 Anderson Street, Tarro, which was within the City of Newcastle, being one of the nominated catchment areas. In an ex tempore decision delivered on 17 August 2015, the sentencing judge determined that the appellant resided in Tarro at the time of his arrest and accordingly that he was eligible for referral to the Drug Court program.

Initial sentence

On 7 September 2015, the proceedings came before the sentencing judge for "initial sentence": see ss 4 and 7A of the Drug Court Act. The sentencing judge determined that the appellant was eligible for inclusion in the Drug Court program in accordance with s 5 of the Drug Court Act. He also found the appellant to be an "appropriate person" within the meaning of s 7A(2)(c) of the Drug Court Act. In accordance with s 7A(3) of the Drug Court Act, the sentencing judge proceeded to impose an "initial sentence" on the appellant.
In ex tempore reasons for sentence, the sentencing judge referred to the objective seriousness of the offending. He noted that each of the break and enter offences of 25 April and 10 May were committed against the elderly, one being on Anzac Day at a Veterans' Affairs establishment and the other on Mother's Day, which were "days of solemnity and celebration". The sentencing judge observed that the elderly are particularly vulnerable members of the community.
The sentencing judge also referred to the appellant's extensive record for like offences. His Honour took into account the appellant's record in accordance with the principles in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, noting that his record was "relevant not to increase the objective seriousness of the offences but rather that retribution and deterrence and protection of society may indicate a more severe sentence is warranted". The sentencing judge noted that the appellant was on bail at the time of the commission of some of these offences.
The sentencing judge allowed a 10 percent discount for the pleas of guilty in respect of each of the summary offences and a 25 percent discount for the two indictable offences.
Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, his Honour fixed an aggregate sentence of 5 years and 9 months in respect of twelve of the offences, exercising jurisdiction under s 7A(3) of the Drug Court Act. It was not necessary to fix a non-parole period for the aggregate sentence: see s 7A(4) of the Drug Court Act. He further specified the following indicative sentences for the indictable and summary offences:

Indictable offences 1. Drug Court sequence 21 Aggravated break and enter with intent knowing person present (Veterans' Affairs Residence, Narrabeen, 25 April 2015): 2 years and 3 months 2. Drug Court sequence 23 Aggravated break and enter commit serious indictable offence (Veterans' Affairs Residence, Narrabeen, 10 May 2015): 3 years with a NPP of 2 years and 3 months

Summary offences 1. Drug Court sequence 1 Larceny at Loquat Valley Primary School at Bayview on 28 November 2013 ($550 cash stolen): 4 months 2. Drug Court sequence 3 Larceny at Loquat Valley Primary School at Bayview on 6 February 2014 ($1400 cash stolen): 5 months 3. Drug Court sequence 7 Larceny at Manly Village Public School at Manly on 30 April 2014 ($150 cash stolen): 4 months 4. Drug Court sequence 10 Larceny at Elanora Primary School at Elanora Heights on 1 May 2014 ($50 cash stolen): 4 months 5. Drug Court sequence 12 Larceny at Loquat Valley Primary School at Bayview on 5 May 2014 (property to the value of $40 stolen): 4 months 6. Drug Court sequence 14 Break, enter and steal at Loquat Valley Primary School at Bayview on 1 May 2014 ($350 cash stolen): 9 months 7. Drug Court sequence 15 Break, enter and steal at Loquat Valley Primary School at Bayview on 27 March 2014 ($160 cash stolen): 9 months 8. Drug Court sequence 17 Remain in building/land (Herforts Chemist, Avalon) with intent to commit indictable offence (namely larceny) on 2 December 14: 9 months 9. Drug Court sequence 18 Having been convicted of indictable offence (break enter and steal at Gosford Local Court) found in You Save Chemist, Avalon, with intent to commit indictable offence: 2 months 10. Drug Court sequence 19 Break, enter and steal (house at Collaroy Plateau, $40 cash and gold watch stolen): 18 months.

The sentencing judge also imposed convictions under s 10A of the Crimes (Sentencing Procedure) Act in respect of the remaining summary counts (8 offences of enter inclosed lands and one offence of enter prescribed premises without lawful excuse).
The sentencing judge referred to principles of totality in imposing the sentence. It can be seen from the above that there was a substantial degree of concurrence in the aggregate sentence imposed. The total of the indicative sentences is just under 11 years, but the aggregate sentence was one of 5 years and 9 months.
The sentence was suspended and a Drug Court treatment plan was commenced in accordance with s 7A(5) of the Drug Court Act. The appellant was informed that he could expect to spend up to 18 months on the Drug Court program.

Termination of the appellant's Drug Court Program

On 7 October 2015, the appellant absconded from the residential rehabilitation facility at which he was required to reside pursuant to the Drug Court program. The appellant was arrested on 16 October 2015. On 29 October 2015, he was charged in respect of two on-program offences, namely aggravated break and enter with intent to commit serious indictable offence (persons present) and goods in custody (committed on 11 October 2015). On 2 November 2015, the original sentencing judge terminated the appellant's Drug Court program in accordance with s 10(1)(b) of the Drug Court Act 1998. He was subsequently refused bail.

Final sentence

On 22 February 2016, consequent upon the termination, the appellant came before his Honour for the imposition of final sentences pursuant to s 12 of the Drug Court Act, for the offences for which the initial sentences had been imposed. Section 12 of the Drug Court Act empowered the Drug Court to reconsider the initial sentences, set them aside, and impose instead "any sentence that it could have imposed for the offence to which the initial sentence related" (s 12(3)(c)) or make orders confirming the initial sentences (s 12(3)(d)): R v Sebastian Curt [2003] NSWCCA 236.
The appellant submitted that the Court should revoke the termination on the basis of fresh evidence concerning his psychological condition, namely, a diagnosis of "substance use disorder, probable bipolar disorder and manic depressive illness". His Honour determined not to revoke the termination of the Drug Court program.
In ex tempore remarks delivered on 22 February 2016, his Honour imposed a final sentence confirming the aggregate sentence of 5 years and 9 months commencing on 19 May 2015 and expiring on 18 February 2021, with a non-parole period of 3 years and 10 months expiring on 18 March 2019.
In imposing this sentence, his Honour referred to a report of Ms Leona Neilson, a caseworker with the Hunter Drug Court. In particular, his Honour referred to Ms Neilson's conclusion that: "Unfortunately, [the appellant] has been unable to derive any therapeutic benefit from his Drug Court program and has demonstrated a limited understanding of the impact of his substance use on his life. [The appellant] displayed a high level of resistance to engaging in treatment and admitted to health staff that his time on the program was largely spent attempting to subvert his requirements rather than engaging in treatment…"
His Honour also referred to the psychiatric report of Dr Olav Neilssen and to the appellant's diagnosis of substance use disorder and probable bipolar disorder and manic depressive illness. He observed that the diagnoses were "not clear", because of the appellant's history of stimulant drug use, which can produce both elevated mood during periods of intoxication and depressed mood in the aftermath of drug use in a pattern that can resemble the phases of bipolar disorder. His Honour noted that in the final paragraph of his report, Dr Neilssen expressed the opinion that effective treatment of mood disorder may reduce the probability of the appellant committing further offences, but noted that: "… the pattern of the [appellant's] offences appears to be related to substance use and successful treatment for an underlying substance use disorder including supportive counselling and close monitoring of abstinence after release would be expected to have the greatest effect on [his] propensity to commit further offences."
In this respect, his Honour observed that the sentencing of an offender who suffers from a mental disorder calls for a "sensitive discretionary decision", citing The Queen v Veen (No 2), The Queen v Wright (1997) 93 A Crim R 51 and R v Engert (1995) 84 A Crim R 67. He also observed that the appellant had spent 279 days in custody since coming into the Drug Court program, and that there was an agreed start date for the sentence of 19 May 2015 so as to take into account this time served.
His Honour observed that he was required to determine a final sentence, and that that could be done by confirming the initial sentence, or setting aside the initial sentence and resentencing. His Honour concluded that the initial sentence should be confirmed, stating: "… the offender has made no attempt to engage in the Drug Court Program, having absconded from Adele House after one month. It is a matter where the Court could set aside the initial sentence on the basis of the mental health report. Having regard to the report of Dr Neilssen, particularly the last sentence of the report, it is my view that the initial sentence should be confirmed. I note the letters of Dr Cook, but of course, I note that he has been in custody in that time and therefore has not had the access to illicit drugs that he would have in the community."
His Honour made a finding of special circumstances on the basis of the need for ongoing supervision on parole.

The appeal

A notice of intention to appeal was filed on 25 April 2016 pursuant to an extension granted by the Registrar. A notice of appeal was filed on 4 August 2016.

Ground One: Severity of Sentence

To succeed on this ground the appellant must establish that the sentence was "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] and Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].
Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not an arithmetical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features: Markarian v The Queen at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34].
Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its discretion differently: Markarian at [27]; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. As Hayne J observed in AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128]: "there will be a range of possible sentences that could be imposed without error". Rather, intervention is warranted only when the difference between the sentence imposed and the sentence imposed for other cases is so marked that "the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons": Hili at [59].
The Crown contended in this Court that it could not be said that the aggregate sentence of 5 years and 9 months imprisonment with a non-parole period of 3 years and 10 months was unreasonable or plainly unjust: 1. the appellant engaged in a course of conduct which spanned almost 18 months (November 2013 to April 2015) and incorporated 21 property offences, including 2 aggravated break and enter offences, 5 larceny offences and 3 offences of break, enter and steal; 2. the two indictable offences of aggravated break and enter were committed upon vulnerable persons, namely elderly persons living in a retirement village; 3. the majority of the summary offences were committed in primary schools, and involved the entry into classrooms; 4. the appellant was on bail at the time he committed the two indictable offences and three of the summary offences; 5. the appellant's extensive record for like offending required that significant weight be afforded to general and specific deterrence; and 6. his Honour's finding with respect to special circumstances resulted in a ratio of just 66 percent. This was a generous finding in the circumstances where there was little, if any, positive evidence of rehabilitation: R v Tuuta 239 A Crim R 399; [2014] NSWCCA 40 and R v Beale [2015] NSWCCA 120.
In addition to the matters outlined above, the Crown submitted that the indictable offences for which the appellant was charged were subject to significant maximum penalties and a standard non-parole period. The offence contrary to s 112(2) of the Crimes Act carried a maximum penalty of 20 years imprisonment and a standard non-parole period of five years and the offence contrary to s 113(2) of the Crimes Act carried a maximum penalty of 14 years imprisonment. The summary offences for which the appellant was sentenced carried maximum penalties when dealt with on indictment of 14 years imprisonment (break, enter and steal and aggravated break enter and steal: s 112 and s 113 of the Crimes Act), 7 years imprisonment (remain in building with intent: s 114(1)(d) of the Crimes Act) and 6 months imprisonment (found with intent: s 546(b) of the Crimes Act). Measured against these important guideposts, a sentence of 5 years and 9 months with a non-parole period of 3 years and 10 months was said to be well open to his Honour.
The Crown contended that the appellant had failed to establish that the sentence was demonstrably outside the legitimate range of his Honour's sentencing discretion.
The appellant appeared unrepresented in this Court. He did not address the substance of his ground of appeal challenging the severity of his sentence beyond saying that he "was a bit shocked with [it]".
The appellant readily conceded that his offending was shameful. His criminal record cannot assist him in any consideration of whether he is entitled to leniency. The offences for which he was sentenced were numerous. The aggregate sentence imposed does not in my opinion appear to be excessive in any way at all. It was entirely within an appropriate range of sentences for offending of the type concerned. The sentencing judge did not err in imposing the sentence that he imposed.
This ground of appeal should be rejected.

Ground Two

The appellant indicated that he wanted to be referred to the Drug Court at Parklea Correctional Centre. He was sentenced at the Toronto Drug Court even though at the time of his offence he maintained that he was living at Manly which is in the Sydney catchment area. He had also been referred to the Compulsory Drug Treatment Correctional Centre program with his sentence on 29 July 2016.
The appellant seeks a fresh referral to the Drug Court program. The only matter raised in support of this submission is the appellant's assertion that, at the time of the offence, he was living at Manly.
The appellant was terminated from the Drug Court program for his non-compliance with the Drug Court program, including his having absented himself from Adele House, and having committed further offences. There is no appeal from a decision to terminate an appellant's Drug Court program: s 11(2) of the Drug Court Act. Once an offender's Drug Court program is terminated, the offender must be dealt with under s 12 of the Drug Court Act, which requires that a "final sentence" be determined in respect of the offender. The Crown contended in these circumstances that this Court does not have jurisdiction to refer the appellant to the Drug Court program in respect of the offences which are the subject of the present appeal.
The appellant wrote a series of letters that he wished to have taken into consideration in this Court in aid of his expressed preference to be referred again to the Drug Court. Indeed, the most recent letter is dated 3 November 2016 and was received in the Registry on 16 November 2016. It was accompanied by a letter from Angela McClements dated 11 November 2016. An extract from another of the appellant's letters, and an earlier letter from Ms McClements, are set out later in these reasons. From that and other material it seems to be clear, and the Crown properly conceded, that the appellant has raised a legitimate issue concerning whether or not he is or may be eligible for referral to the Drug Court on some basis. That issue arises having regard to the following matters.
The Drug Court Act provides two discrete avenues of diversion for offenders with long term drug addiction. The first is the Drug Court program for which Part 2 of the Act provides. Where an offender is eligible for referral to the Drug Court program, the offender receives only an initial sentence. That initial sentence is then suspended to allow for participation in the program through either supported accommodation or residential rehabilitation centres.
The second avenue of diversion is through compulsory drug treatment orders for which Part 2A of the Act provides. Where such an order is made, the offender remains in custody and moves through a number of progressive stages of custody from secure and closed detention in stage 1 to community custody with intensive supervision in stage 3.
The appellant is not eligible for re-admission to the Drug Court program. He was terminated from that program and there is no appeal from such a termination: s 11 of the Act. However, it remains possible for this Court to determine whether he should be the subject of a compulsory drug treatment order pursuant to Part 2A of the Act. That possibility arises in the following way.
Section 18B of the Act provides as follows: "18B Courts to refer eligible convicted offenders to Drug Court (1) This section applies to such courts as are prescribed by the regulations. (2) It is the duty of a court to which this section applies that sentences a person to imprisonment or which, on determining an appeal, confirms a sentence of imprisonment imposed on the person by some other court (whether or not on the same terms as the other court): (a) to ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender, and (b) if so, to refer the person to the Drug Court to determine whether the person should be the subject of a compulsory drug treatment order. (2A) The duty imposed on a court by this section does not apply to a court on determining an appeal (an 'appeal court') if the person whose sentence is confirmed in the appeal is already the subject of a compulsory drug treatment order as a consequence of a referral made to the Drug Court by the court that imposed the sentence confirmed by the appeal court. (2B) However, if the person whose sentence is confirmed by the appeal court is not already the subject of a compulsory drug treatment order, the duty imposed by this section applies to the appeal court, whether or not the court that imposed the sentence confirmed by the appeal court referred the person to the Drug Court under this section. (3) The duty imposed on a court by this section is to be exercised as soon as practicable after the person is sentenced to imprisonment or the appeal is dealt with. (4) The registrar or clerk of a court that refers a person to the Drug Court under this section must give to the registrar of the Drug Court such documents and materials prescribed by the regulations relating to the person as are requested by that registrar. (5) No appeal lies against a court's decision to refer or not to refer a person to the Drug Court for a determination as to whether the person should be the subject of a compulsory drug treatment order. (6) For the purposes of this section, an 'appeal' includes an application for annulment of sentence in so far as it relates to a decision referred to in subsection (5)."
Regulation 9 of the Drug Court Regulation 2015 provides as follows concerning the prescription of referring courts: "9 Referring courts - referral of eligible convicted offenders For the purposes of section 18B (1) of the Act, the following courts are prescribed: (a) the District Court, in respect of all criminal proceedings brought before it in its sittings at Campbelltown, Liverpool, Parramatta, Penrith or Sydney, (b) the Local Court, in respect of all criminal proceedings brought before it in its sittings at Balmain, Bankstown, Blacktown, Burwood, Camden, Campbelltown, Central, the Downing Centre, Fairfield, Hornsby, Kogarah, Liverpool, Manly, Mount Druitt, Newtown, North Sydney, Parramatta, Penrith, Richmond, Ryde, Sutherland, Waverley or Windsor, (c) the Drug Court, in respect of sentences imposed or determined under section 7D (3) or 12 (3) of the Act, (d) the Court of Criminal Appeal, in respect of appeals from a court referred to in paragraph (a), (b) or (c) in respect of the proceedings referred to in relation to that court."
The proceedings in this Court are an appeal against a sentence determined under s 12(3) of the Act, so that this Court is a referring court within the meaning of reg 9(d). Accordingly, if this Court confirms a sentence of imprisonment upon the appellant, it must ascertain whether there are grounds upon which the Drug Court could find him to be an eligible convicted offender. Section 5A of the Act defines that term as follows: "5A Definition of 'eligible convicted offender' (1) A person is an eligible convicted offender if: (a) the person is convicted of an offence, other than an offence referred to in subsection (2), and (b) except as provided for by subsection (1A), the person has been sentenced to a term of imprisonment for the offence to be served by way of full-time detention and at the time that the sentence was imposed: (i) the unexpired non-parole period of the sentence was a period of at least 18 months, and (ii) the unexpired total sentence was a period of not more than 6 years, and (d) the person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and (e) the facts in connection with the offence for which the person has been sentenced, together with the person's antecedents and any other information available, indicate that the offence was related to the person's long-term drug dependency and associated lifestyle, and (f) the person satisfies such other criteria as are prescribed by the regulations. (1A) Subsection (1) (b) does not prevent a person whose parole order has been revoked from being an eligible convicted offender if the person is a relevant person within the meaning of section 18BA (State Parole Authority to refer certain offenders whose parole is revoked to Drug Court). (2) A person is not an eligible convicted offender if: (a) the offence for which the person has been convicted involved the use of a firearm, or (b) the person has been convicted at any time of any of the following: (i) murder, attempted murder or manslaughter, (ii) sexual assault of an adult or child or a sexual offence involving a child, (iii) any offence involving the violent use of a firearm, (iv) an offence under section 23 (2), 24 (2), 25 (2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity or large commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act, (v) any offence prescribed by the regulations for the purposes of this section. (3) A person is not an eligible convicted offender if, in the opinion of the Drug Court: (a) the person suffers from a mental condition, illness or disorder that: (i) is serious, or (ii) leads to the person being violent, and (b) the mental condition, illness or disorder could prevent or restrict the person's active participation in a drug treatment program."
In the particular case of the appellant: 1. he has been convicted of an offence and the unexpired portion of the non-parole period is more than 18 months, and the unexpired portion of the total sentence is less than 6 years: s 5A(1)(a) and (b). 2. he has a long term drug dependency and the facts in connection with the offences for which he has been sentenced, together with his antecedents and other available information, indicate that the offences were related to that dependency and his associated lifestyle, as indicated by his previous referral to the Drug Court program: s 5A(1)(d) and (e). 3. he is over the age of 18 years: s 5A(1)(f) and reg 5(b). 4. he is male: s 5A(1)(f) and reg 5(d).
The only potentially controversial factor, and the one to which the appellant's letters and oral submissions directed most attention, is the question of his usual place of residence: reg 5(a). In order to be an "eligible convicted offender", the appellant's usual place of residence must be within one of the prescribed local government areas, all of which are in Sydney.
When the appellant was referred to the Drug Court program, that court found that his usual place of residence was Tarro, in Newcastle. Tarro is within the prescribed area for referral to the Drug Court program in accordance with reg 4(a) but it is not within the prescribed area for a compulsory drug treatment order. If it were accepted that Tarro is the appellant's usual place of residence for the purposes of reg 5(a), he would not be an eligible convicted offender within the meaning of ss 5A and 18B(2)(a) of the Act.
The relevant time for determining a person's usual place of residence for the purposes of reg 4(a) is the "time immediately before [the person] came into custody that is immediately before they reached that status where they had no choice as to where they were living": R v Partridge [2013] NSWDRGC 2; R v Duggan [2001] NSWDRGC 5. In the present case it would seem that the relevant time for determining the appellant's usual place of residence may be informed by the fact that he absconded from the Drug Court program. However, it is not clear whether the appellant could relevantly have established a new place of residence in the time between when he absconded from the Drug Court program and his re-arrest. It is also not apparent whether he did in fact do so and whether it was in the Sydney Metropolitan area if he did, or whether, as the appellant himself contends, his usual place of residence remained at all relevant times somewhere on the Northern Beaches of Sydney. The appellant's offending occurred in that area but that does not by itself establish that his usual place of residence was also in that area.
On 13 September 2016, the Drug Court held that the appellant was not an eligible convicted offender with respect to his latest offending. The precise basis for that conclusion is not specified. The Crown had submitted that the appellant was not an eligible convicted offender because of both the length of the sentence in question and that his usual place of residence was not within a relevant catchment area. In that last respect, the appellant's usual place of residence was identified as either Canberra or the Hunter region. As the appellant was clearly not eligible by reason of the length of the sentence, it was arguably unnecessary for the Drug Court to determine his usual place of residence.
The Crown contended in this Court that the appellant is not eligible for referral to the Drug Court program under s 6 of the Act. However, the Crown also conceded that he may be eligible for referral to the Drug Court for consideration of whether that court should make a compulsory drug treatment order under s 18B of the Act. The Crown characterised that inquiry as having "a low threshold". Section 18B requires this Court to ascertain whether "there are grounds on which the Drug Court might find the person to be an eligible convicted offender". The Crown conceded, in the particular circumstances of this case, that the uncertainties attending the appellant's usual place of residence left it open to this Court to find that there are grounds upon which the Drug Court "might" find him to be an eligible convicted offender. The Crown accepted that if the appellant's sentence of imprisonment were confirmed in this Court, it could refer him to the Drug Court pursuant to s 18B(2) for determination of whether he should be the subject of a compulsory drug treatment order.
In a letter written by the appellant to this Court dated 16 October 2016, he referred to his place of residence in the following relevant terms: "There is a number of submissions I want to raise. The first submission is your Honour I did have a Newcastle address when I went for the Toronto Drug Court though I was only living there with a friend for maybe two weeks after I committed my offences and I only went for the Toronto Drug Court because I thought that was going to be my new address though when I committed my shameful offences I was living at Freshwater. I have always lived on the Northern Beaches. Sorry, I lived in the Central Coast when I was married though that was a number of years ago though in the last 10 years I have lived on the Northern Beaches and that's where all my offences happened and also your Honour the DPP solicitor for some reason said I have a Canberra address your Honour I don't know where that came from. My second submission your Honour is the DPP solicitor says that I don't have a non-parole period of 18 Months though it says my earliest release date is 18 April 2019. Peter Bartel from the Parramatta Drug Court has said that he can argue these facts to the Parramatta Drug Court Judge and Peter Bartel has said we have a good argument if your Honour sees fit to refer me in my appeal I will have a great higher chance …"
This Court was also provided with a letter written by Angela McClements, the Integration Manager at the Compulsory Drug Treatment Correctional Centre, a division of NSW Justice. That letter is in the following terms: "I confirm that in my role as Integration Manager at the Compulsory Drug Treatment Correctional Centre, Mr Luke Willmott has contacted me a number of times. He has written, phoned my work number via his inmate personal correctional centre phone account and also via request for a phone interview through the Junee Correctional Centre Resettlement Officer. Through this contact he has asked many questions about the Compulsory Drug Treatment Program and I have sent him information about the program including the eligibility criteria on his request. Mr Willmott has been persistent in follow up about his eligibility concerns and seems eager to undertake this program as part of his sentence. I understand there is an issue over whether or not Mr Willmott's residential address is within the metropolitan Sydney boundary for CDTCC eligibility. Mr Willmott indicated he has evidence of a metropolitan Sydney residence for the period he committed the offences of the conviction he is appealing on 7th October 2016. He said he was residing with his mother at Forestville during this period. Mr Willmott requested I write this letter as supportive evidence of his motivation to address his drug use issues. My opinion is that Mr Willmott has shown a high level of interest to undertake the CDT Program. I wish him well in his attempts to address his drug use problems."
This Court was quite understandably not given the advantage of detailed submissions from the appellant on this factual question of where he resided at the relevant time. However, as the Crown submissions properly identify, the result of an examination of that question is not, or at least should not be, foreclosed by the limited evidence that is available to this Court concerning it. The appellant is himself keen to return to a Drug Court regime of some sort and has enthusiastically embraced the prospect of convincing the Drug Court of his eligibility. Further and more precise evidence concerning the address at which he resided would undoubtedly be marshalled by him in support of his contentions if the opportunity to do so arises.
The appellant is not presently the subject of a compulsory drug treatment order as a consequence of a referral made to the Drug Court by the court that imposed the sentence, which I have indicated should be affirmed by this Court. It therefore becomes the duty of this Court, as a court that confirms a sentence of imprisonment imposed upon the appellant by some other court, to ascertain whether there are grounds on which the Drug Court might find him to be an eligible convicted offender and if so to refer him to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.
In my opinion the appellant satisfies the criteria set forth in s 5A of the Act as well as those set forth in reg 5. The only possible exception to that position relates to reg 5(a). The issue of the appellant's relevant place of residence is worthy of examination for the reason that it remains presently unresolved. In my view, there is sufficient doubt about that issue to lead me to conclude that the Drug Court might, upon further investigation, find the appellant to be an eligible convicted offender.
I consider that the appellant ought in these circumstances to be referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

Conclusion and orders

I consider that the following orders should be made: 1. Dismiss the appeal against sentence. 2. Refer the appellant to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.
R A HULME J: I agree with Harrison J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2016

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