New South Wales Court of Criminal Appeal CITATION : Regina v Clayton [2000] NSWCCA 311 FILE NUMBER(S) : CCA 60811/99 HEARING DATE(S) : 4 August 2000 JUDGMENT DATE : 4 August 2000 PARTIES : Regina v Regie Clayton JUDGMENT OF : Newman J at 1 ,18; Sperling J at 2-17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2032 LOWER COURT JUDICIAL O'Reilly DCJ OFFICER : J Manuell (Applicant) COUNSEL : R D Ellis (Crown) D J Humphreys (Applicant) SOLICITORS : S E O'Connor (Crown) CATCHWORDS : Criminal law - appeal against sentence - query as to relevance of alternative of summary proceedings in Local Court - otherwise no question of principle. CASES CITED: Regina v Crombie (1999) NSWCCA 297. DECISION : Sentence set aside - orders made - see paragraph 16 and 17. IN THE COURT OF CRIMINAL APPEAL CCA60811/99 NEWMAN J SPERLING J Friday 4 August 2000 REGINA V CLAYTON JUDGMENT 1 NEWMAN J: I will ask Sperling J to deliver the first judgment in this matter. 2 SPERLING J: On 10 December 1999, the applicant was sentenced to penal servitude for a period of one year and six months commencing on 10 December 1999, consisting of a minimum term of one year and an additional term of six months, on a charge of stealing from the person. The offence occurred on 12 October 1998. 3 The applicant was as at 12 October 1998 eighteen years of age and he was on probation under the supervision of the Juvenile Justice Office, following three stealing matters dealt with in the Children's Court. 4 The sentencing judge took into account two further offences which occurred between 12 October 1998 and 10 December 1999. On 2 March 1999, the applicant stole a wallet containing $25 and various cards. On 13 August 1999, he was living in a youth refuge and assaulted another person residing there occasioning actual bodily harm. The charge apparently arose out of an altercation in which the applicant was also injured. 5 In relation to the offence committed on 12 October 1998, the applicant was initially charged with robbery in company to which he pleaded not guilty. However, the Crown subsequently amended the indictment to steal from the person to which the applicant pleaded guilty. 6 Having been remanded on bail to appear for sentence on 2 September 1998 before a District Court judge, it transpired that the judge was part-heard in a trial that day and the applicant's solicitor also wanted to explore the possibility of obtaining medical evidence. The sentence hearing was adjourned and a further condition was imposed on the applicant in relation to bail, namely, that he not only report to the Probation Service but that he obey the direction of the Service throughout the period of the adjournment. 7 During the discussion which took place on that occasion, there was mention of a Griffith remand but, as I read the transcript, this was not mentioned in the sense that, if the applicant complied with his bail conditions, a non-custodial sentence would be imposed. 8 In the course of discussion his Honour also said, "If he does not comply with those conditions" - referring to the bail conditions. This was not a promise that, if the applicant did comply with the bail conditions, he would not go to gaol. I take the judge to have said only that, if he did not comply with the bail conditions, he would go to gaol pending trial, which is no more than the usual consequence of breaching bail conditions. 9 There were three reports from the Probation and Parole Service, dated 28 July, 2 September and 10 December 1999. The first two of these were entirely negative and they suggested no alternative to a custodial sentence. The report of 10 December 1999, however, was in a very different tone. It was reported that the applicant had made substantial positive changes during the adjournment period. He had been residing with his mother and step-father, subject to spending a large amount of time with his girlfriend of some four years standing. At his own initiative, he had obtained employment in the building industry. He had taken part in a six week job training programme which would lead to an apprenticeship. He appeared to be committed to pursuing employment in the building industry and increasing his bricklaying skills. There had been substantial improvement in his reliability in relation to reporting. He had attended all his appointment and had maintained telephone contact with his parole officer. There had been positive and sustained changes in his behaviour and attitude and, in the opinion of the author of the report, the potentiality of employment had given him purpose. As to the sentencing options, the court was informed that the applicant could benefit from a period of supervised recognizance, and he was assessed as suitable for a community service order and, also, as suitable for a sentence of periodic detention. 10 Following the offence on 12 October 1998, there was a further offence of a similar kind, namely, on 2 March 1999. The offence of 13 August 1999 was of a different character and not of the same significance, particularly in the case of a young male. The applicant had not come to police attention during the period of the adjournment from 2 September 1999 to 10 December 1999. 11 The sentencing judge took a serious view of the offence committed on 12 October 1998, particularly since the applicant was on probation at the time and because of the recurrence of similar behaviour on 2 March 1999. A serious view was unavoidable. His Honour went on to say, "I need a little bit more than the faith of the Probation Officer to deter me in imposing full time custody." 12 The principal ground of appeal advanced on behalf of the applicant is that the sentencing judge created in the applicant an expectation that, if he complied with his bail conditions during the adjournment between September and December 1999, a non-custodial sentence would be imposed, and that the applicant now has a justifiable sense of grievance, having received a custodial sentence notwithstanding compliance with his bail conditions. For the reasons I have given, I think this puts the point too high. If there was such an expectation created by what the sentencing judge said, it was not, in my view, a justified expectation. 13 However, there is a question as to whether, in the circumstances, the sentence was manifestly excessive. 14 In this regard, reference has been made to the alternative of summary dismissal of the charge which was made against the applicant. Reliance was placed on the decision of this Court in Regina v. Crombie (1999) NSWCCA 297. which appears to lend some support to the approach that it is relevant to take into account the lower range of sentencing available in the Local Court in relation to an offence which could be tried summarily. I must say, for myself, that I have considerable doubt as to whether that is the correct approach and I note that that was the decision of a bench comprised of two judges of the court rather than three. However, it does not seem to me to be appropriate, on the present occasion, constituted again as the court is by two judges only, that there should be any review of a matter of principle such as that. Fortuitously, I think this is a case in which the question of a lower maximum penalty in the Local Court does not arise with any level of significance. 15 When one takes a broad view of the case, it seems to me that, giving appropriate weight to the offence charged and the offences taken into account, and having regard to subjective considerations, including the applicant's age and his change in behaviour, particularly during the period September to December 1999, the sentence imposed was too severe and manifestly so. 16 The sentence should, in my view, be set aside. In re-sentencing the applicant, regard is to be had to the affidavits of his mother and step-father which corroborate much of what is said in the last of the probation reports. They add to the impression that the applicant has turned over a new leaf. 17 I would regard the period served in custody to date as adequate punishment in the circumstances of the case. I would substitute a fixed term of penal servitude commencing on 10 December 1999 and expiring at 12 o'clock today. 18 NEWMAN J: I agree. The orders of the Court will be as pronounced by Sperling J. 19 That means you will be released in about three minutes but there are some formalities to go through; so you will have to go back to the cells with the officers, but you will not be there for very long. ***** 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. 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