R v BELL [2000] NSWCCA 413

New South Wales Court of Criminal Appeal

CITATION : R v BELL [2000] NSWCCA 413 FILE NUMBER(S) : CCA 60679/00 HEARING DATE(S) : 11/10/2000 JUDGMENT DATE : 11 October 2000

PARTIES : Regina v Mark Anthony BELL JUDGMENT OF : Hulme J at 14; Barr J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1122 LOWER COURT JUDICIAL Luland DCJ OFFICER :

COUNSEL : Crown: P Hock Applicant: RJ Button SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys

LEGISLATION CITED : Justices Act s 51A DECISION : Leave to appeal granted; appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60679/00

HULME J BARR J

Wednesday, 11 October 2000 REGINA v Mark Anthony BELL JUDGMENT

1 HULME J: I will ask Barr J to deliver the first judgment. 2 BARR J: The applicant, Mark Anthony Bell, seeks leave to appeal against sentences imposed by Luland DCJ in the District Court. 3 The applicant pleaded guilty in the District Court to one count of taking and using a conveyance and two counts of breaking, entering and stealing. On the third of those counts the applicant asked the Court to take into account two further instances of breaking, entering and stealing, one of stealing a motor vehicle, one of taking and driving a conveyance, one of driving whilst unlicensed and one of possessing car breaking implements. At the same time the applicant came to be dealt with under s 51A of the Justices Act for a further count of breaking, entering and stealing. The ten offences were committed by the applicant between 22 January 1998 and 22 March 1999. 4 On the third count in the indictment, and taking into account the six further offences I have mentioned, his Honour sentenced the applicant to a fixed term of three years' penal servitude. On the two remaining counts in the indictment, his Honour sentenced him to fixed terms of two years, concurrent with the three year fixed term. For the count of breaking, entering and stealing, to which the applicant had pleaded guilty before the magistrate, his Honour sentenced the applicant to a cumulative term of penal servitude for five years, comprising a minimum term of three years and an additional term of two years. The total sentence was therefore one of eight years, comprising a minimum term of six years and an additional term of two years. 5 At the time of sentence the applicant was a forty-two year old man who had spent twenty-seven years in custody. His criminal history comprised principally drug and drug-related property offences. His Honour described him as "very likely institutionalised". The applicant was released to parole on 21 February 1997, and was subject to that parole when he committed the two break, enter and steals and stole a car in January 1998. His arrest for those offences resulted in revocation of his parole. 6 The applicant was again released to parole in March 1998 but, in December of that year, stole a car and committed other offences. He was subsequently allowed bail for all outstanding charges and, whilst on that bail and still on parole, he committed the final act of breaking, entering and stealing. 7 The applicant was addicted to the use of heroin, which he had been using for almost twenty years. All previous attempts at rehabilitation programmes had been unsuccessful, though at the time of sentence the applicant was on a methadone programme, which the applicant and his Honour regarded as holding out some promise for the future. In view of that matter his Honour thought that, notwithstanding the applicant's unpromising history, there was some prospect of rehabilitation. It was on that account that in structuring the sentence on the final count of breaking, entering and stealing, his Honour fixed an additional term which exceeded one-third of the minimum term. 8 In imposing sentence his Honour drew attention to the applicant's criminal history and drug addiction, and to the prospect of his continuing offending on release if he could not overcome his heroin addiction. His Honour drew attention to the need for general deterrence in these types of offences and, in the applicant's case, for the need to protect the community. 9 It was submitted on behalf of the applicant that his Honour erred in failing to fix a longer additional term during which the applicant should be eligible for release on parole. During his Honour's remarks on sentence he said: One, however, must not lose hope that perhaps the prisoner will rehabilitate himself on this occasion by continuing his present treatment and counselling. I will give some account for that in the sentences I impose, by way of finding special circumstances in the latter sentence I impose. 10 It was submitted that the accumulation of sentences itself may constitute a special circumstance justifying the fixing of an additional term exceeding one-third of the minimum term of any sentence, but that even so, and notwithstanding his Honour's remarks, the total effective sentence was one in which the additional term was no greater than one-third of the effective minimum term. In the result, his Honour, though purporting to find special circumstances other than accumulation, failed to give effect to that finding and must have fallen into error. 11 I do not accept this submission. His Honour made clear when drawing attention to the need to foster the applicant's rehabilitation that he would adjust the sentence that he would last accumulate. His Honour could scarcely have overlooked the fact that he was accumulating sentences. The resulting sentence is one which contemplates up to two years on parole under supervision following upon a six year period in custody during which the applicant will continue his efforts to rid himself of his addiction. His Honour was not bound to make a further adjustment on account of the fact of accumulation itself. 12 The resulting sentence is, in my opinion, not only the sentence his Honour intended to impose, but is just in all the circumstances, making proper provision for a minimum term which reflects the objective seriousness of the applicant's criminality and the need to protect the public, and at the same time to allow the applicant a substantial period of time on parole. I see no error in his Honour's approach. 13 I would grant leave to appeal but would dismiss the appeal. 14 HULME J: I agree with the orders proposed and with his Honour's reasons. 15 The order of the Court is accordingly that leave to appeal is granted and the appeal is dismissed. **********