District Court New South Wales Medium Neutral Citation: Refojos v R [2022] NSWDC 417 Hearing dates: 2 August 2022 Date of orders: 2 August 2022 Decision date: 02 August 2022 Jurisdiction: Criminal Before: Neilson DCJ Decision: See par [8]. Catchwords: CRIME – APPEAL – SEVERITY OF SENTENCE – DRIVING OFFENCE – DRIVING DURING PERIOD OF DISQUALIFICATION – Local Court failed to take into account pre-sentence custody – Custody of knife without reasonable excuse – ICO for 12 months to commence after expiration of custodial sentence not permitted by Act – Length of ICO too great considering nature of offending – Sentences adjusted. Legislation Cited: Crimes (Sentence Procedure) Act 1999 (NSW) Cases Cited: Nil. Texts Cited: Nil. Category: Sentence Parties: Appellant – Diego Andres Refojos R - Crown Representation: Appellant – Mr Maxton of LegalAid NSW R – Ms O'Connell of the Office of the Director of Public Prosecutions File Number(s): 2022/00006360; 2022/00148896 Publication restriction: Nil. Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Crime Citation: Nil. Date of Decision: 24 June 2022 Before: Virgo LCM File Number(s): 2022/00006360; 2022/00148896 Judgment 1. HIS HONOUR: This is an appeal against sentences imposed by Virgo LCM sitting in the Downing Centre Local Court on 24 June 2022 for an offence of driving a motor vehicle during a period of disqualification, being a further offence of such a nature, between 12.30am and 1.30am on 9 January 2022 at Surry Hills. Her Honour sentenced the Appellant to imprisonment for three months commencing on 24 May 2022 and expiring on 23 August 2022. 2. For an offence of having custody of a knife in a public place without a reasonable excuse, being a further offence of that type, committed between 10.20pm and 11.55pm, at Brighton Le Sands on 23 May 2022, her Honour imposed an Intensive Corrections Order ("ICO") for a period of 12 months to commence at the expiration of the prison sentence on 23 August 2022. That ICO required, inter alia, the Appellant to perform 100 hours of community service, to undergo rehabilitation and/or treatment as prescribed by Corrective Services and to abstain from drugs. 3. There are some technical problems with each of those sentences. For example, the Appellant was in custody between 9 and 11 January 2022, a period of three days and between 15 February 2022 and 1 March 2022 a period of 15 days solely referable to the offence committed on 9 January 2022. Her Honour's calculation of the sentence did not take into account those 18 days, which it ought to have. That means that the sentence that her Honour imposed should have commenced on 5 May 2022 and expired on 4 August 2022, that is, its expiry would be on the day after next. 4. In respect of the second sentence, her Honour failed to observe the terms of s 71 of the Crimes (Sentence Procedure) Act 1999 which provides in s71(1) that: "An intensive corrections order commences on the day on which it was made". There is an exception contained in s71(2), but that exception is not relevant. Therefore the ICO that her Honour made was incorrect in law. The appropriate method dealing with these two errors is, in my view, the commencement of the custodial sentence on 5 May 2022 but rather than having it expire on 4 August 2022 I shall order that it expire today, that is that I will reduce the sentence of the fixed term of imprisonment of three months to three months less two days. 1. The remaining question on appeal is as to the length of the ICO. There is no submission made that an ICO should not be imposed but the submission is as to its length. There was clearly an early plea of guilty to the relevant charges. For the offences committed on 23 May 2022, the Appellant was taken before the Local Court at Sutherland on 24 May 2022 when the matter was stood over for plea or mention on 7 June 2022. On 7 June 2022 the Appellant pleaded guilty to all charges and the matter was then adjourned for sentence, leading ultimately to the sentence imposed on 24 June 2022. That is an early plea of guilty attracting a discount of 25%. 2. When one considers that, then her Honour commenced with a starting point of 16 months out of a possible 24-month head sentence. Neither the crime nor the plea warranted such a starting point, which is well above the mid-range of seriousness. Indeed, it is almost three quarters of a most extreme case. I have reached the view that the correct commencing sentence ought to have been 14 months and discounting that by 25%, one comes to a head sentence of ten months such that the ICO will run for ten months. 3. It has also been submitted that the requirement to perform community service for 100 hours may be onerous, but considering that the Appellant was certified as being able to be provided with 21 hours of work per month, requiring him to perform 100 hours of work over ten months is hardly, in my view, onerous. 4. For those reasons I set aside the sentences passed by the Downing Centre Local Court on 24 June 2022. In lieu thereof for H87409380 Sequence 1 I sentence you to imprisonment for 3 months less 2 days to date from 5 May 2022 and to expire on 2 August 2022. In respect of H90590116 Sequence 3 I sentence you to imprisonment for a term of 10 months commencing today to be served by way of intensive correction in the community. Terms of the order are: 1. You must not commit any offence; 2. You must submit to supervision by a Community Corrections officer; 3. you must complete community service work for 100 hrs; 4. You must participate in rehabilitation/treatment program as directed by Community Corrections; 5. You must abstain from drugs; 6. You are to report to the Community Corrections Office at Sutherland by close of business on 5 August 2022. 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: 16 September 2022