R v EVANS [2006] NSWDC 89

New South Wales District Court

CITATION: R v EVANS [2006] NSWDC 89

HEARING DATE(S): 27/02/2006

JUDGMENT DATE: 27 February 2006

EX TEMPORE JUDGMENT DATE : 02/27/2006

JUDGMENT OF: Berman SC DCJ

DECISION: See Paragraph 10

CATCHWORDS: Criminal Law - Severity Appeal from Local Court - Intellectual Disability - Graffiti - Assault - Indecent Exposure

PARTIES: DPP Samuel David Evans

FILE NUMBER(S): 06/12/0187

SOLICITORS: DPP Legal Aid Commission

JUDGMENT

1 HIS HONOUR: Mr Evans received prison sentences for five separate offences. Mr Evans has a significant intellectual disability. For many years now the intellectually disabled have been vastly over-represented in prisons and for many years now the services available to them whilst in custody have been the subject of some criticism.

2 In this case there is a particular aspect of the failure of Corrective Services to be able to deal with the intellectually disabled which is of particular importance. Mr Evans has been assessed as not being suitable for community service work. This is simply because the Department does not have the resources to supervise him with his intellectual disability. He is also unsuitable for periodic detention for the same reason. It is not his fault that he is intellectually disabled, and yet the consequences for him could be quite significant.

3 No alternatives to full-time custody seem available. The law is not that I must therefore go down the rungs until I find a sentence which Mr Evans can serve. I must choose from those which are available, that is the most appropriate sentence. In this case I am probably choosing the least inappropriate sentence.

4 Mr Evans committed a number of offences relating to graffiti. His first offence was committed on 25 July 2005 and his second offence committed on 13 August 2005 involved the appellant in graffiti-ing property with his own tag. Police soon learned what the appellant's tag was, so whenever they saw it they knew that the appellant was responsible.