Regina v Cowan [1999] NSWCCA 49

New South Wales Court of Criminal Appeal CITATION : Regina v Cowan [1999] NSWCCA 49 FILE NUMBER(S) : CCA 60029/99 HEARING DATE(S) : 10 March, 1999 JUDGMENT DATE : 10 March 1999

PARTIES : Regina v Corey James Cowan JUDGMENT OF : Simpson J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Twigg DCJ

COUNSEL : S. Corish Counsel for Appellant L M B Lamprati Counsel for the Crown SOLICITORS : Sydney Regional Aboriginal Corporation Legal Service for the Appellant S E O'Connor for the Crown CATCHWORDS : Severity of sentence - Community service - Break, enter and steal. ACTS CITED : Community Services Orders Act 1979 Criminal Procedure Act CASES CITED: Regina v Morris, unreported CCA 10.11.95 DECISION : Leave to appeal granted. Appeal against sentence of 12 months allowed and sentence imposed by Judge Twigg quashed. In lieu thereof the applicant is sentenced to a fixed term of imprisonment commencing on 9.12.1998 and expiring on 9.3.1999. The applicant is to be released immediatelly. Pursuant to s.24A of the Criminal Procedure Act, the commencement date of 9 June 1999 of the sentence of another matter of 9 months periodic detention imposed by Twigg DCJ is varied. The serving of that sentence will commence immediately. The applicant is to report to the Unanderra Periodic Detention Centre on or before 4.00pm on Friday 19 March 1999.

-8 -

IN THE COURT OF CRIMINAL APPEAL 60029/99 SIMPSON J SMART AJ Wednesday, 10 March 1999 REGINA v Corey James COWAN JUDGMENT 1 SMART AJ: Corey James Cowan seeks leave to appeal against the severity of a sentence comprising a minimum term of six months and an additional term of six months "in respect of a breach pursuant to the Community Services [Orders] Act 1979." Upon analysis, but not in form, the judge, being satisfied that the applicant was guilty of an offence under s 23(1) of the Act by failing without reasonable cause to comply with a Community Service Order as made on 11 September 1997, dealt with the applicant under s 25(4) for the offence in respect of which the order was made, namely break, enter and steal. 2 On 12 June 1997 the appellant committed the offence of break, enter and steal. At 1.45pm he and three other persons drove to 22 Hawthorn Avenue, Nowra, to purchase cannabis. The applicant was advised en route of the intention of the others to break into the premises if the owner was not at home. The applicant initially waited in the motor vehicle but then entered the premises with the co-offenders. The applicant and the co-offenders ran from the premises after a person, who was believed to be an occupier of the premises, was observed approaching them. The applicant was located shortly thereafter and was arrested. 3 The property which was stolen was recovered although one item was damaged when it was dropped. The applicant assisted police in their enquiries by naming the co-offenders. He admitted his involvement when interviewed by the police and pleaded guilty at the first opportunity. 4 He played a lesser role than his co-offenders. As to his co-offenders, one of them received ten months periodic detention and the other has decamped. 5 On 28 July 1997 the applicant appeared before Nowra Local Court and pleaded guilty. He was sentenced to eight months imprisonment to be served by way of periodic detention and to pay compensation of $100. A severity appeal was lodged. 6 On 11 September 1997 the applicant appeared before his Honour Garling DCJ who, in lieu of periodic detention, ordered the applicant to perform 300 hours of unpaid community service. Garling DCJ gave the applicant a blunt, forceful and appropriate warning; if he did not get off drugs and alcohol and stay out of trouble he would end up in gaol on a full time basis. 7 On 21 September 1998 a complaint was made pursuant to s 23 of the Community Services Orders Act 1979 alleging that the applicant failed without reasonable cause or excuse to comply with the order of 11 September 1997. 8 On 6 November 1998 the applicant appeared before Nowra Local Court. The Magistrate made this notation: "Breach admitted. Defendant is released on unconditional bail to appear at District Court at Nowra sittings commencing 30/11/98." 9 On 9 December 1998 the applicant appeared before Twigg DCJ. The evidence established that the applicant had performed his obligations under the community service order poorly, he did not attend as required and the Probation and Parole Service had to chase him up on many occasions. 10 The Service telephoned the applicant's home, left messages and wrote to him. His conduct was unsatisfactory. The Service showed patience and persistence. The judge correctly regarded the applicant's explanations for non-attendance as lacking substance. The judge also regarded the applicant's statements as to where he would or might obtain work as fanciful. The judge rejected the applicant's statement that he had no difficulty with alcohol and other substances, preferring the report of the probation officer that the applicant's use of cannabis and his alcohol abuse had affected him and that his claim that the use of the drug and alcohol had lessened had not been substantiated. His quest for cannabis was probably a factor in his going into the premises where the offence occurred. 11 The applicant had supportive parents; his girlfriend was expecting their child in February 1998. The applicant left school early in his school certificate course. He had been working at a large grocery retail outlet. When the current matter before the Court became known to his employer the applicant's hours of work were reduced. 12 The applicant, who was born on 17 September 1978, was before the Children's Court on some six occasions between 1993 and 1996 and was the subject of non-custodial penalties. 13 In October 1995 he was dealt with for robbery. He was dealt with in the Local Court during 1998. Twigg DCJ noted in passing that the applicant had served 224 hours community service. The judge did not regard community service or periodic detention as appropriate. The judge said: "I have taken into account his criminal history, his background, his youth, the need for general and particular deterrence and his indigenous background. I see no option other than to impose full time custody but I will vary the minimum and additional terms." 14 The judge was correct in his view that there were special circumstances. He also correctly attached importance to specific and general deterrence. It was reasonably open to the judge to hold that a sentence of full-time custody should be imposed. 15 Section 26 of the Act requires the Court to take into account the making of the community service order and anything done under that order. That requires the Court to have regard not only to the unsatisfactory features of the applicant's performance but also that he served 224 of the required 300 hours, about seventy-four per cent. That is substantial and must be given significant weight. Nor is it permissible to leave out of account that the applicant initially received eight months periodic detention. If the applicant had not complied with any of that order he would have received a sentence of eight months imprisonment with the probability of a minimum and additional term. 16 The Crown has submitted that the sentence imposed by the Judge was not a harsh one and was appropriate in all the circumstances of the case. 17 The Court's attention was correctly drawn to the decision in R v Morris, unreported CCA 10.November, 1995. The judge had to consider the original offence and the appropriate sentence and also had to take into account the community service order and the service rendered. It is important that the obligations under community service orders be carried out. 18 The judge erred in not attaching sufficient weight to the length of the original sentence, namely, eight months periodic detention and the applicant serving seventy-four per cent of his community service. This error led to the Judge imposing a sentence which was excessive. In broad terms, eight months period detention equates to about seventy days full time custody. Not only has that period been served, but the applicant has also served most of his community service. 19 In all the circumstances, I am of the opinion that the appropriate sentence was a fixed term of imprisonment commencing on 9 December 1998 and expiring on 9 March 1999. 20 Leave to appeal should be granted, the appeal against sentence allowed and the sentence imposed by Judge Twigg quashed. In lieu thereof the applicant should be sentenced to a fixed term of imprisonment commencing on 9 December 1998 and expiring on 9 March 1999. The applicant is to be released immediately. 21 At the time of dealing with this matter, Judge Twigg dealt with another matter being an appeal from a decision of a magistrate. In that other matter Judge Twigg confirmed a sentence of nine months periodic detention. The commencement date of that sentence now needs to be brought forward. 22 Pursuant to s 24A of the Criminal Procedure Act, the commencement date of 9 June 1999 of the sentence of nine months periodic detention imposed by Twigg DCJ is varied. The serving of that sentence will commence immediately. The applicant is to report to the Unanderra Periodic Detention Centre on or before 4pm on Friday 19 March 1999. 23 SIMPSON J: I agree and the orders will therefore be as proposed by Justice Smart.