R v Otto [1999] NSWCCA 190

New South Wales Court of Criminal Appeal CITATION : R v Otto [1999] NSWCCA 190 FILE NUMBER(S) : CCA 60611/98 HEARING DATE(S) : 19/7/99 JUDGMENT DATE : 19 July 1999

PARTIES : Regina Jason Paul Otto (Appellant) JUDGMENT OF : Studdert J at 1; Smart AJ at 24

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/3235 LOWER COURT JUDICIAL OFFICER : Ford ADCJ

COUNSEL : R.D. Ellis (Crown) In person SOLICITORS : S.E. O'Connor (Crown) CATCHWORDS : Criminal Procedure Act ACTS CITED : Crimes Act Sentencing Act DECISION : Leave to appeal granted, appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60611/98

STUDDERT J SMART AJ

Monday 19 July 1999

REGINA v JASON PAUL OTTO

JUDGMENT

1 STUDDERT J: The applicant, Jason Paul Otto, pleaded guilty to two counts in an indictment presented in the District Court. The first count charged him with stealing a motor vehicle and the second with stealing property. 2 His Honour, Acting Judge Ford QC, sentenced the applicant on the second count to a minimum term of four years to commence on 12 February 1998 and to expire on 11 February 2002 and an additional term of two years. On the first count his Honour fixed a sentence of twelve months to be served concurrently with the sentence imposed on the second count. The judge also dealt with the applicant for breach of a recognizance which had previously been fixed, and imposed a fixed term of six months, again to be served concurrently with the terms fixed on the counts contained in the indictment. 3 The applicant now seeks leave to appeal against the severity of the sentence imposed. 4 The judge was asked to take into account, and did take into account when passing sentence upon the applicant, a number of offences scheduled pursuant to the Criminal Procedure Act. Those matters comprised some seven offences and a number of them were similar to the offence charged in the second count in the indictment. Two other scheduled offences related to the manner of driving of a vehicle and driving whilst disqualified. The offence charged in the second count in the indictment was one which attracts a maximum penalty under s 94 of the Crimes Act of fourteen years penal servitude. 5 The facts relating to the matters charged in the indictment were not in dispute and a statement of facts was tendered. Shortly, the applicant was one of three men who went to a carpark and entered a vehicle that had been parked there, with the aid of a screwdriver. They used the screwdriver to start the motor vehicle and then travelled off in it. 6 Two nights later they travelled in that stolen vehicle to the carpark of the Fairfield RSL Club. The vehicle was driven up behind the victim, Lynette Essey, and the rear nearside passenger reached out of the vehicle grabbing the victim's handbag. She fell to the ground and the vehicle drove off. The victim was injured, suffering minor lacerations. What was stolen was a black drawstring pouch that contained make-up, personal papers and $20 in cash. 7 I observe that there was similarity in certain of the other scheduled offences. It is not necessary to record here all the detail of those other offences of a like nature but there was an incident, again at the Fairfield RSL Club, on 17 July when a passenger in the car in which the applicant was reached out, grabbing hold of another victim's handbag. 8 The same thing happened on another occasion at the Bankstown Trotting Club on 17 July. 9 On the following day, at the Wetherill Park shopping centre the victim was putting groceries into the boot of a car when the vehicle came up and a passenger on the rear offside took hold of the victim's jacket, pulling the victim towards the car and her handbag was then taken. 10 There was another incident when an attempt was made to snatch a victim's handbag by one of the occupants of the motor vehicle travelling past. 11 Again, on 19 July 1997, the occupants of the car, including the applicant, drove up behind the victim at the Bass Hill shopping centre carpark, grabbing hold of her handbag and going off with it. 12 There were other driving offences itemised on the schedule which his Honour was asked to take into account and did take into account. 13 There can be no question but that the crimes committed by the applicant as charged in the indictment were serious and the crime charged in the second count was particularly reprehensible. His Honour rightly categorised the offence as a cowardly one, of a type mirrored in certain of the scheduled offences to which I have referred. There was a clear need for the sentencing judge to reflect the gravity of the criminal behaviour in the penalties he imposed and to give due weight to questions of deterrence both general and particular. There is a need for the courts to send out a message as to the gravity with which offences of the type of bag snatching which here occurred is regarded, and that such offences will attract condign punishment. 14 The applicant was only twenty-two years of age but he had a formidable criminal record for offences of dishonesty, driving offences and drug offences. He had undergone some treatment for his drug addiction in 1996 and through to 1997 but left the programme he was then undertaking prematurely. Then, following his arrest for the subject offences, he was granted bail on condition that he undertake a drug rehabilitation programme at Lynden House. He was dismissed from that programme for a behavioural breach and his bail was revoked. 15 The applicant in written submissions complained that the sentencing judge gave no consideration to his age or to his plea of guilty. Those submissions are not to be accepted. The sentencing remarks begin with the observation that the applicant had pleaded guilty. That was a circumstance that the applicant was entitled to have taken into account and I see no reason to consider that the judge failed to do so. Nor is there any reason to believe that the judge failed to take account of the applicant's age. This feature of the case and the applicant's rehabilitative needs I would regard as having been addressed when the judge considered the question of special circumstances for the purpose of s 5(2) of the Sentencing Act. 16 His Honour's remarks on sentence contain the following passage: "I have had the benefit of reading the report of Ann-Marie Petrinas and I fully appreciate her recommendation that you be given an opportunity to rehabilitate yourself. You have tried to do that previously without success, but it is perfectly obvious that you do need to undertake a course which will involve counselling and urinalysis and so forth and so on. I am satisfied that there are special circumstances and I will make provision for that in the additional term which I fix." 17 Although the judge specifically found special circumstances, the applicant has submitted that he did not mention anything about taking that feature of the case into account. That submission is plainly incorrect. Not only did the judge specifically state, as the passage above set out discloses, that he intended to take account of the special circumstances in the structure of the sentence but it is plain that he did so because the additional term fixed was one-third of the total sentence. 18 No error has been shown by the applicant's submissions in the approach that the judge took to his sentencing task. In my opinion the sentence was altogether appropriate. 19 In the applicant's submissions he wrote that he had made "a huge effort" to correct his drug problem and that this was not taken into account. It does seem to me that was a factor which was taken into account in the structure of the sentence, that is to say, in the structure as between minimum term and additional term. 20 The applicant, who has appeared in person today, has addressed this Court in relation to the steps he has taken since being taken into custody to rehabilitate himself. He has expressed his contrition. He has expressed his shame for what he did. He has perceived himself as having matured significantly whilst in custody and this Court is asked to take into account the efforts towards rehabilitation that the applicant has made. A number of documents have been placed before the Court that deal with the applicant's endeavours to rehabilitate himself since he has been in custody. 21 There is an achievement award reflecting his successful completion of a course on exploring issues and problem-solving; there is a certificate reflecting successful completion by the applicant of certain instruction under the Occupational Health and Safety teaching; there is a further record that deals with educational achievement in a course that the applicant has attended concerning literacy, numeracy, living skills, art and design, information technology and Maori studies, and it is to be observed that the applicant is to be commended for the commitment which he has demonstrated in the pursuit of those studies to the person in charge. 22 The endeavours that the applicant has been making and hopefully will continue to make whilst he is in custody to rehabilitate himself are to be commended. The obvious importance, both to the applicant and to the community, in his pursuing his efforts to rehabilitate himself are plain. However, this Court cannot disturb what was otherwise an appropriate sentence by having regard to efforts to rehabilitate pursued since sentence was passed. This Court is constituted to correct error made by a sentencing judge, if error be established. 23 Having looked carefully at the sentencing remarks and the material that was placed before the sentencing judge, it seems to me that the sentence which was imposed was an appropriate sentence. It follows that, in my opinion, no cause has been shown to disturb the sentences imposed in the District Court. I would therefore propose that leave to appeal be granted but that the appeal should be dismissed. 24 SMART A-J: I agree. 25 STUDDERT J: The orders of the Court then will be those that I have proposed. **********