New South Wales Court of Criminal Appeal CITATION : R v ROTHQUE [2000] NSWCCA 427 FILE NUMBER(S) : CCA 60051/00 HEARING DATE(S) : 13/10/2000 JUDGMENT DATE : 13 October 2000 PARTIES : Regina v Stephen Roy ROTHQUE JUDGMENT OF : Hulme J at 6; Barr J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/41/0124 LOWER COURT JUDICIAL Luland DCJ OFFICER : COUNSEL : Crown: PG Berman Applicant: M Austin SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys DECISION : See para 5 IN THE COURT OF CRIMINAL APPEAL 60051/00 HULME J BARR J Friday, 13 October 2000 REGINA v Stephen Roy ROTHQUE JUDGMENT 1 BARR J: This is an application for leave to appeal against sentences imposed upon the applicant in the District Court. On 14 January 2000 the applicant was sentenced by his Honour Judge Luland QC to a number of concurrent and cumulative sentences the effect of which was a minimum term of six years and an additional term of two years. The applicant was a drug addict of long standing with a long record of property offences and offences of dishonesty, as well as drug offences. He had already served more than twelve years in custody. He pleaded guilty to three counts of breaking, entering and stealing, one count of possessing housebreaking implements and two counts of breaking and entering with intent to commit a felony. In addition he asked his Honour to take into account twenty-three further offences relating to theft and receipt of stolen goods, firearms offences, malicious damage, drug offences and some other offences. In the circumstances the total term of eight years is unsurprising and has not come under attack in this application. 2 The application is based on his Honour's recorded assessment of the applicant's prospects of rehabilitation and an express intention to provide for an additional term exceeding one third of the minimum term. Having dealt with the objective seriousness of the offences and with the generally poor subjective case the applicant was able to put forward, his Honour said this: However, in the light of the fact that the prisoner did make some effort to rehabilitate himself on his prior release, leaves some hope that he may make a more determined effort the next time. His application to education and drug counselling in gaol are, in my view, special circumstances, which enable me to allow for a greater period on parole, if indeed it is granted to him. Nonetheless, the sentences must be significant to illustrate the totality of his criminality. 3 It is submitted on the applicant's behalf that, having expressed an intention to make an allowance for the finding of circumstances justifying an additional term exceeding one-third of the minimum term, his Honour erred in failing to do so. The Crown concedes the error. 4 In my opinion, the sentences should be varied where necessary so as to provide for a minimum term of five years and an additional term of three years. I have come to this view for two reasons. The first is that an additional term of three years seems to me to be sufficient for substantial progress to be made, provided the applicant is willing to do so, in following up the education and drug counselling the applicant will have received in gaol and making a sustained effort to overcome the addiction to illegal drugs which underlies all his criminal activity. Secondly, I am of the view that a minimum term of any less than five years would be insufficient to cope with the objective seriousness of the offences, bearing in mind the need to deter the applicant himself and others from committing like offences, to protect the community and to register the community's disapproval of such a serious bout of criminality. 5 I propose the following orders: Grant leave to appeal and allow the appeal, quash the sentences and impose the following sentences in lieu: On count one, imprisonment for four years commencing on 8 April 1999 and expiring on 7 April 2003; On each of counts two, three, five and six, imprisonment for two years commencing on 8 April 2001 and expiring on 7 April 2004; On count four, imprisonment for four years commencing on 8 April 2003 and expiring on 7 April 2007. The Court declines to fix a non-parole period on counts one, two, three, five and six. On count four, the Court fixes a non-parole period of one year, expiring on 7 April 2004. The applicant will become eligible for release on parole on 7 April 2004. 6 HULME J: I agree with the orders proposed and his Honour's reasons. 7 Accordingly, the orders of the Court are as 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.