R. v Wayne Lee GARLAND [1999] NSWCCA 410

New South Wales Court of Criminal Appeal CITATION : R. v Wayne Lee GARLAND [1999] NSWCCA 410 FILE NUMBER(S) : CCA 60372/98 HEARING DATE(S) : 27/10/99 and 10/12/99 JUDGMENT DATE : 10 December 1999

PARTIES : REGINA v Wayne Lee GARLAND JUDGMENT OF : Simpson J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/0383 LOWER COURT JUDICIAL OFFICER : Grogan DCJ

COUNSEL : Applicant in person. R D Ellis and L M B Lampratti for the Crown SOLICITORS : Applicant in person S E O'Connor for the Crown CATCHWORDS : Break, enter and steal offences; effect of aggregation of sentences; events subsequent to sentencing. ACTS CITED : -Nil- R v. Sommerville (1995) 36 NSWLR 184 CASES CITED: Wilson v Department of Corrective Services (1997) 93 A Crim R 30 R v Webster (1998) 43 NSWLR 258 DECISION : Refer paragraph 21.

- 6 - IN THE COURT OF CRIMINAL APPEAL 60372/98

SIMPSON J SMART AJ Friday, 10 December, 1999 REGINA v Wayne Lee GARLAND

JUDGMENT

1 SMART AJ: Wayne Lee Garland seeks leave to appeal against the severity of two concurrent sentences comprising a minimum term of 2 years and an additional term of 18 months for breaking, entering and stealing and breaking and entering with intent. He had pleaded not guilty but was convicted after a trial. 2 Between 7.55 pm on 22 September and 2.50 am on 23 September 1996 the alarm wires to premises known as Shell Vineyard Autoport were cut, rendering the alarm ineffective. A hole was cut in the roof above the storeroom and the cigarette strongbox was opened and emptied. Oxyacetylene hoses were used in a failed effort to open the safe which was damaged. $400 in cash, tobacco and cigarettes were taken. This offence involved considerable planning. 3 After reconnoitring the premises at 2/12 Garling Road, Marayong and the general area, the applicant and his co-offender, about 11.55 pm on 22 September 1996, forced the front door of the premises open with a crowbar. Cabinet doors were opened and a locked cabinet door was forced open. They were searched for items to steal but nothing of value was found. A van was noticed near other premises in Plumpton and its movements aroused the suspicion of a police officer. A police chase ensued with the van's lights being turned off and a number of streets being traversed at speed. The van entered a dead end street. The police chased and caught the applicant. When interviewed by the police the applicant was untruthful. The van was stolen. 4 The District Court was asked and did take into account that on 22 September 1996 the applicant drove a stolen vehicle used in the commission of the offences and that while driving that vehicle he was unlicensed. 5 The applicant was born on 13 March 1974 and has a criminal history commencing in 1990. The offences include stealing motor vehicles, dishonesty offences, sundry street offences and some drug offences. There were probation orders, fines, recognisances, community service orders and a gaol sentence comprising a minimum term of 6 months and an additional term of 10 months. 6 On 17 March 1998 the applicant was sentenced in respect of 2 break, enter and steal offences to a minimum term of 12 months to date from 25 July 1997 and an additional term of 12 months. That explains why the sentencing judge in the present case dated the sentences from 25 July 1998. The offences for which the applicant was sentenced on 17 March 1998 were committed after the offences the subject of the present application. I interpolate that there was an error in the sentences imposed on 17 March 1998 in that they should have commenced on 25 June 1997, being the date when the applicant was first taken into custody. 7 After his conviction and on the sentence proceedings in the present case the applicant effectively conceded his guilt. His defence of the charges had been due to his fear of gaol and the brutality which he had witnessed and experienced there. He expressed his remorse for committing the crimes. 8 The judge had regard to the report of a consultant psychologist, Ms K.A. Barrier and the Pre-sentence Report. The applicant had a major drug problem and this was the main reason for many of his offences. He had to finance his drug habit. He had a long lasting relationship break-up. It was recommended that he receive sustained support and counselling. 9 In an updated Pre-sentence Report of 9 June 1998 this summary appears: "Mr Garland proposed to live with his parents in their home at Blacktown upon his release. He wishes to attempt to regain work as a pastry cook, a vocation he enjoys. He also stated his aim of attempting to remain separate from his prior drug using associates. He appears to realise the necessity for this to help him remain drug free. Mr Garland has a long history of varying illegal drug abuse which has not aided his maturation. He would appear at "the crossroads" in determining whether he has the motivation and application to attempt to be law abiding in the future." 10 The judge said that he took into account that the applicant had served an additional month in custody for which he had not been given credit. However, the sentences imposed do not reflect the credit. 11 The judge correctly found special circumstances. The applicant would need an extended additional term as he would need much support, counselling and supervision. 12 In his submissions the applicant has stressed the long period he has been in gaol, i.e. since 25 June 1997, the harsh conditions he has endured including the bad things which have happened to himself and others and the serious injuries inflicted on inmates. His de facto wife has left him. He has lost contact with his two children and has not seen them since Christmas 1997. He complained about the number of moves from gaol to gaol which he has endured. He has attended many courses and tried to improve himself. He has been drug free for about two years and changed his ways and outlook on life. If released he would live with his parents and pursue his desired trade as a baker or pastry cook and seek counselling to help prevent any relapse back into drugs. 13 The distress being experienced by a young man in a lengthy stay in prison and his efforts to rehabilitate himself are appreciated. However, in sentencing the cardinal factor is the gravity of the offence. Also of much importance is general and personal deterrence. 14 As a result of the sentences imposed the applicant has to spend three years one month in gaol for three break, enter and steal offences and one offence of break and enter with intent with an additional term of 18 months. The judge referred to the principles of totality and the sentences which he imposed absorbing the whole of the additional term of the earlier sentence. As at September 1996 the applicant was aged 22 years having been born on 13 March 1974. In 1998 when he was being sentenced he was described by the consultant psychologist and the Probation and Parole Officer as being at the cross roads. The sentences imposed do not when aggregated, sufficiently recognise this. He is still a young man and has real prospects of rehabilitation. It is thought that he has started to mature. 15 The sentences imposed are excessive in that there should be a shorter minimum term and a longer additional term namely, one of two years to allow for sustained support and supervision. 18 months is too short. This will still leave the applicant with, in total, a substantial minimum term of 2 years 6 months. That is long enough especially in view of the extra month he spent in gaol between 25 June 1997 and 25 July 1997. 16 The applicant relied on one further matter. He complained that since he has been in gaol he has contracted Hepatitis C. The pathology report of the Hunter Area Pathology Service reveals that Dr D. Outridge who has been treating the applicant in gaol requested the tests and that the applicant tested positive to having Hepatitis C. The report continues: "14 Sep 99 This patient is not immune to hepatitis B virus. Consistent with recent or past HCV infection. This is a notifiable infection and a copy of this report will be forwarded to the Public Health Unit." 17 This report leaves open when the applicant contracted this infection. The applicant in his affidavit of 2 December 1999 has asserted that Hepatitis C was given to him in the course of a bashing/fight about 10-12 months ago. His submissions refer to the blood of the attacker coming into contact with cuts on his face. I have read the applicant's Departmental medical records. There do not appear to be previous relevant tests. The applicant has received sustained treatment and medication for depression. In a June 1997 questionnaire the applicant or a prison nurse, most probably the latter, has ticked the 'No' box in respect of Hepatitis. Dr Outridge has been treating the applicant since 1998, albeit mainly for depression and prescribed medication frequently. If there had been anything obviously amiss I would have expected the doctor and nurses to have noticed that and to have ordered tests as he did in September 1999. 18 The evidence points to the applicant probably contracting Hepatitis C while in gaol but it is by no means conclusive. Further, there is no evidence as to the prospects of recovery or the long term effects. The question remains whether this helps the applicant. Prisoners do suffer injuries in gaol inflicted by others, sometimes deliberately and sometimes accidentally. Similarly they contract diseases. If any concession is to be made as a result that is generally a matter for the Executive rather than the Courts. 19 As was stated in R. v Sommerville (1995) 36 NSWLR 184 at 189 and 198 it is only in exceptional circumstances that events occurring after sentence can be taken into account. Usually there must be seen to have been a miscarriage of justice. The cases on periodic detention and its cancellation provide a good example: Wilson v Department of Corrective Services (1997) 93 A Crim R 301 and R. v Webster (1998) 43 NSWLR 256. It would be unwise in the present case where the applicant has appeared in person and full argument on the point has not taken place to elaborate further on the principles as to when subsequent events may be taken into account. On any view the sentence could not be varied further than I have earlier indicated. 20 I have taken into account the offences on Form 2 mentioned earlier in the sentences which I propose. 21 I propose the following orders: