New South Wales Court of Criminal Appeal CITATION : REGINA v DEVERELL [1999] NSWCCA 46 FILE NUMBER(S) : CCA 60416/96 HEARING DATE(S) : 8 March 1999 JUDGMENT DATE : 8 March 1999 Craig DEVERELL - Applicant PARTIES : v The Crown - Respondent JUDGMENT OF : Simpson J at 1; Smart AJ at 20 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0114 LOWER COURT JUDICIAL OFFICER : Howie DCJ COUNSEL : Applicant : in person Respondent : W G Dawe QC SOLICITORS : Respondent : S E O'Connor CATCHWORDS : CASES CITED: Criminal Procedure Act DECISION : Leave to appeal granted. Appeal dismissed. Direct the applicant be released at the expiration of the minimum term. IN THE COURT OF CRIMINAL APPEAL 60416/98 SIMPSON J SMART AJ Monday 8 March 1999 REGINA v Craig DEVERELL JUDGMENT 1 SIMPSON J: The applicant seeks leave to appeal a sentence imposed on him on 10 July 1998 in the District Court by Judge Howie, when the applicant was called up for sentence on his having breached a recognisance imposed by Judge Gibson on 18 September 1997. 2 On that date, following his plea of guilty to a charge of break, enter and steal, Judge Gibson deferred passing sentence upon the applicant entering into a recognisance to be of good behaviour for a period of three years. In taking this course, his Honour took into account another two matters pursuant to section 21 of the Criminal Procedure Act . These consisted of two counts of break, enter and steal and eight counts of stealing. Significant in the reasons for Judge Gibson adopting the course he did was the applicant's youth - he was then 18 years of age - and the prospects of rehabilitation which his Honour then perceived. 3 The offence was a serious one of its type. The applicant and a co-offender entered residential premises where they stole goods to the value of $51,000. A condition of the recognisance imposed by Judge Gibson was that the applicant stay and reside at an address at The Entrance occupied by an institution known as the "New Beginnings Mission" and not leave that programme or premises without the leave of the court. It was a further condition that he subject himself to the supervision of the New South Wales Probation Service and obey all lawful directions and commands of that service. 4 The applicant did attend the "New Beginnings Mission" but he stayed there for only about three months. During the three month period there were some occasions on which, in breach of the condition of the recognisance, the applicant left the premises for some kind of festivities. During these absences, and possibly also whilst he was at the "New Beginnings Mission" he used cannabis and some alcohol. Eventually he was asked to leave the Mission because he was under suspicion for the theft of some property that was missing. He denied being responsible for the theft, and that matter is not before the Court. 5 He returned to lived with his parents at Nelson Bay for a short time, but then notified his supervising officer from the Probation Service who was able to arrange for him to participate in a new rehabilitation establishment known as "The Fourth Gospel Recovery". He remained at this establishment for only four or five days before being asked to leave, again because it was discovered that he had used cannabis. 6 He again contacted his probation officer who then arranged alternative accommodation for him, this time at a rehabilitation establishment known as "Sherwood Cliffs" at Coffs Harbour. He was directed to attend there within three days. While he did attend, he did not do so within the three days he was directed, but did so within five days. This was because his girlfriend's birthday fell during that period. In any event he, remained at this institution only for about three days before being asked to leave, this time because he had smuggled in some tobacco, contrary to the apparently very strict rules which there applied. 7 He again returned to his parents' home and remained there until the Probation Service took action in relation to the various breaches of the conditions of his recognisance which I have outlined. 8 On 10 July he came before Judge Howie for sentence. Judge Howie, of course, was sentencing him not for the breaches of the conditions of the recognisance, but for the charge in respect of which the recognisance was imposed, that is, the charge of break, enter and steal, taking into account the ten matters listed on the Form 1. 9 In this respect it is salient to observe that when imposing that recognisance, Judge Gibson was at some pains to point out to the applicant the consequences of breach of the recognisance and seriousness of the offence for which he was then before the Court. He told the applicant in the clearest possible terms that if he came back before that judge for breach of the recognisance, the sentence that would be imposed would be a minimum term of 18 months in gaol and, his Honour being determined to ensure that the applicant understood what he was saying, he had the applicant repeat those words. That was an indication, by Judge Gibson, to the applicant of the gravity with which he viewed the offence with which he was then dealing. 10 When the applicant came before Judge Howie, that judge heard evidence, including sworn evidence from the applicant. Having heard that evidence and having read the materials that were before Judge Gibson, Judge Howie sentenced the applicant to a term of imprisonment for two years, which, having found special circumstances, he divided into a minimum term of nine months and an additional term of 15 months. Judge Howie considered that the opportunity afforded to the applicant by Judge Gibson had proved futile and that he had to reassess the matter, accepting that questions of rehabilitation had become much less important than at the time of the original sentence, because the passage of time had shown that rehabilitation was less likely to occur other than after the applicant had served an appropriate sentence. 11 Judge Howie had before him evidence of from the Probation Service demonstrating that that Service considered itself unable to find any alternative to a custodial sentence. That was principally because of the applicant's use of drugs and his failure to obey the directions of the Service. The applicant's use of drugs was a matter that had been before Judge Gibson at the time he took the course that he did. 12 Judge Howie concluded that the time had come for the applicant to face the consequences of his criminal conduct in a custodial institution. In doing so, he was fully conscious of the gravity of such a step in relation to a young man of the applicant's age. He was born on 2 November 1978 and, at the time Judge Howie sentenced him, he had not turned 20. 13 Judge Howie also had before him two letters from the applicant's father, the first dated 5 May 1997, presumably provided for the purposes of the sentencing proceedings before Judge Gibson; the second dated 7 July 1998, presumably provided for the proceedings before Judge Howie. In each of these letters the father's concern and anxiety is apparent, but it is also made clear that no matter how well intentioned, the home environment was unlikely to correct the applicant's rebellious behaviour. 14 There was, before both judges, some favourable material from others who had worked with the applicant, but that material could not and did not outweigh the gravity of the objective circumstances. 15 The applicant appeared unrepresented in this Court. He relied upon a letter signed by him and directed to this Court which contains a facsimile date notation of 3 November 1998. Not surprisingly, given his unrepresented status, some of the matters raised by him in this letter are matters which this Court could not properly take into account, unless it granted leave to the applicant to adduce fresh evidence. Some of these matters were repeated and updated when the applicant addressed this Court. For example, in the letter he said that he had a girlfriend who was then six months pregnant, as at November 1998, and he expressed his wishes and needs to be free to offer his support during the confinement and birth. Today when he addressed the Court he said that the child had been born, but that he had not seen the child and has been unable to give any assistance to the mother of the child. In his letter he asked to be granted home detention status and made a variety of assertions about the availability of accommodation for him, his present drug free status and the maturation process he had undergone while he was in gaol. 16 I am sympathetic to the application's position in this regard. However, this Court must remind itself that it sits only to correct error. These matters were not before Judge Howie, to the extent that they had occurred, when Judge Howie sentenced the applicant, but the subjective matters generally relating to the applicant were. 17 In my opinion there was no error in the sentencing process undertaken by Judge Howie. When it is borne in mind that Judge Howie, when sentencing the applicant in relation to the serious offence of break, enter and steal (goods to the value of $51,000 were stolen, of which only goods valued at approximately $34,000 were recovered, leaving about $17,000 worth of property outstanding), together with the series of offences on the Form 1, I am of the view that the sentence imposed by Judge Howie was well within the range available to him. I say this, even taking into account the applicant's youth at the time of sentencing and that he had not previously served a custodial sentence. He had been given the opportunity by Judge Gibson, but he had failed to take advantage of that opportunity. 18 In my view, Judge Howie's sentence should not be disturbed, except that a direction be added that the applicant be released at the expiration of the minimum term on 9 April 1999. 19 I propose the following orders: 1 leave to appeal granted 2 appeal dismissed 3 direct that the applicant be released at the expiration of the minimum term. SMART AJ: 20 I agree. SIMPSON J: 21 The orders of the Court will accordingly be as I have proposed. ********** 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.