New South Wales Court of Criminal Appeal CITATION : Regina v Hawkins [1999] NSWCCA 276 FILE NUMBER(S) : CCA 60098/99 HEARING DATE(S) : 20 August 1999 JUDGMENT DATE : 20 August 1999 PARTIES : Regina Alfred HAWKINS(Applicant) JUDGMENT OF : Wood CJ at CL at 32; Simpson J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 91/21/0511 LOWER COURT JUDICIAL OFFICER : Grogan DCJ COUNSEL : C K Maxwell - Crown G P Craddock - Applicant SOLICITORS : S E O'Connor - Crown T A Murphy - Applicant CATCHWORDS : ACTS CITED : Periodic Detention of Prisoners Act 1981 CASES CITED: Webster v Wilson (1977) 93 A Crim R 301 DECISION : Leave to appeal granted, appeal allowed, sentence imposed quashed and in lieu thereof the applicant be sentenced to a minimum term of thirty-six weeks imprisonment to commence from 20 February 1999 and an additional term of eight weeks.; Direction that he be released at the expiration of the minimum term. IN THE COURT OF CRIMINAL APPEAL 60098/98 Wood CJ at CL Simpson J 20 August 1999 REGINA v Alfred Lenard HAWKINS Judgment SIMPSON J : 1 This is an application for leave to appeal against a sentence imposed on the applicant by Judge Grogan at Parramatta on 10 October 1997. The history is rather long and complicated. 2 In January and February 1991 the applicant committed the offence of break, enter and steal and three offences of larceny. On 2 May of that year he entered pleas of guilty to each charge. On the count of break, enter and steal and on two counts of larceny Judge McLaughlin sentenced him to twelve months imprisonment to be served by way of periodic detention and ordered him to report for the purposes of the detention on 4 October 1991. On the third count of larceny the judge imposed a s 55A recognizance in the sum of $2,000 conditioned to be of good behaviour for a period of three years and to pay compensation in the sum of $6,500 to be paid in two instalments of $2,000 and $4,500 respectively. The first instalment was specified to be payable by 23 September 1992, the second by 23 September 1994. 3 The applicant breached the requirements of the recognizance that he be of good behaviour by committing two further offences: one of these was failure to pay for hotel accommodation and the other a simple larceny. He was convicted of those offences on 26 February 1992 and 27 March 1992. Further, on a number of occasions he failed to report to the periodic detention centre and on 15 February 1992 he failed to attend court as required in relation to that breach. In his absence Judge McLaughlin cancelled the periodic detention order of which fifty weeks remained unserved. 4 On 12 August 1992 pursuant to s 27(4)(a), now repealed, of the Periodic Detention Act, Judge McLaughlin converted that term to one made up of a minimum term of thirty-four weeks and an additional term of 16 weeks, the minimum to date from 16 May 1992. The applicant, in fact, served this sentence and counts 1 to 3 are no longer before the court. 5 In relation to count 4 Judge McLaughlin required the applicant to enter a further recognizance to be of good behaviour for three years from the date the recognizance was imposed and he extended the time for payment of the compensation, requiring $2,000 to be paid on or before 8 July 1993, a further $2,000 by 8 January 1994 and the balance of $2,500 by 8 July 1994. The applicant breached this recognizance also. 6 On 22 April 1994 he came before Judge Phelan in respect of the breach which was constituted by failure to pay the compensation. The judge ordered that no action be taken on the breach provided that the applicant made payments of $50 per week by way of compensation; in other respects the terms and conditions of the recognizance were continued. This recognizance too was breached and on 25 August 1995 the applicant came before Judge Johnston. The breach this time was constituted by failure to pay the compensation ordered. Judge Johnston was persuaded that the applicant was anticipating the payment of an award of workers compensation and would remedy the breach by paying the compensation from the sum he received from that source. Judge Johnston accordingly gave the applicant the benefit of a lengthy recognizance until 9 February 1996 in order to make good his promise. 7 On 9 February 1996 the applicant failed to appear and was arrested on a Bench Warrant. He had received a payment for workers compensation apparently in a sum less than he had expected but failed to adhere to his commitment to use that money to pay the compensation Instead he told Judge Johnston that he had used part of that money to pay a drug dealer on his brother's behalf. In evidence in this court he said that the balance of the money was used for the purposes of his gambling addiction. 8 On 11 October 1996 the applicant came before Judge Johnston. There was then $5,800 outstanding in compensation. Judge Johnston concluded that the applicant had no intention of paying the compensation and that it would be a waste of time making any other order that had the effect of leaving the applicant at liberty for the purposes of making compensation for his crimes. It was by then five and a half years since the victims of the crimes had suffered the losses. 9 Judge Johnston initially proposed to impose a sentence of full-time custody but was persuaded to do otherwise and ordered that the sentence be served by way of periodic detention. He sentenced the applicant to a term of nine months to be served in that way commencing on 18 October 1996. The applicant did not attend on a single occasion nor did he apply for leave of absence. 10 A series of notifications arising out of his failure to attend were sent to him at his last known address. On 13 May 1997 applications were made for cancellation of the orders that the sentence be served by way of periodic detention and for the imposition of a period of full-time custody. 11 On 10 October 1997 this application came before Judge Grogan. He made an order that the periodic detention order be cancelled, that the applicant serve the unexpired portion by way of full-time imprisonment, that unexpired portion being forty-four weeks. He declined to fix a minimum and additional term under s 27(4) of the Periodic Detention Act. This is the order the subject of the present application. 12 The applicant was not present in court when the order was made. It is important to observe at this stage that there is no appeal or application for leave to appeal against the order cancelling the order that the sentence be served by way of periodic detention. The only complaint in this case concerns the refusal to divide that sentence into minimum and additional terms. 13 Two main criticisms are made about the sentence imposed by Judge Grogan: firstly, it is said that his Honour should not have proceeded to sentence in the applicant's absence and, secondly, that his Honour was in error in declining to fix minimum and additional terms. As to the first, it was not suggested that his Honour lacked the power but that as a matter of discretion he ought not have done so. Counsel for the applicant relied upon the decisions of this court in Webster and Wilson (1977) 93 A Crim R 301. 14 On the authority of those cases it may be accepted that it is preferable in the ordinary case for offenders to be physically before the court when orders affecting their liberty are made or sought. The wisdom of that course is amply demonstrated in the present case. However, this is not a rule of inflexible application 15 Some light may be shed on the question whether the discretion miscarried by an examination of the results of the course taken by his Honour. It is obvious that by reason of his absence the applicant was deprived of an opportunity to put any factual material before the court or any argument on the course to be adopted. In order for the court to reach an informed view as to whether any injustice may be established it is necessary to have some information about what the applicant would or could if given the opportunity have put before the court at first instance. 16 I interpolate here that it is not suggested that there was any error in the process by which notification was given to the applicant that the matter was before the court. The argument was purely as to the exercise of discretion in circumstances when the matter came before Judge Grogan on an occasion when the applicant was not present. 17 In this Court counsel for the applicant pointed to a number of alleged errors in the approach taken by Judge Grogan but before coming to this it is necessary to refer to an anterior alleged error made by Judge Johnston on 11 October 1996. Judge Johnston opened his remarks by referring to the applicant having come before Judge McLaughlin in January 1991 entering a plea to a charge of breaking, entering and stealing. His Honour went on to say that the applicant was granted the benefit of a recognizance. As I have already observed the applicant had served the sentence imposed in relation to the charge of breaking, entering and stealing. The only offence from 1991 that remained outstanding was the third charge of larceny and it was in relation to that on which he was given the benefit of a recognizance. 18 The sentence imposed by Judge Johnston is not before the court but the remark made by his Honour appears to have had consequences to which I shall shortly come. 19 I turn now to the errors which it is asserted marked Judge Grogan's approach to the matter that was before him. These were: (i) His Honour expressed the opinion that the sentences originally imposed were "surprisingly lenient". It was submitted that this was irrelevant to the question of whether the subsequent sentence should be divided into minimum and additional terms. I do not agree with this proposition. The discretion provided by s 27(4) was a wide one. One relevant circumstance was the potential severity of otherwise of the sentence originally imposed. (ii) It was suggested that his Honour failed to understand that the offences for which he was sentencing the applicant were the original 1991 offences and not a second set of offences of a similar kind. It is possible that his Honour was under a misapprehension about the applicant's criminal history as distinct from the applicant's unquestioned history of non-compliance with the orders of the court and his equally unquestioned failure or refusal to take advantage of the many opportunities offered to him. 20 It is not entirely clear what his Honour was referring to but one interpretation is that he thought he was dealing with offences other than the 1991 offence. What he said was "It looks to me as though I would be satisfied from those references that he has committed similar offences before. I notice that there were larceny and break, enter steal offences." 21 It is not, however, to be overlooked that when the applicant came before Judge McLaughlin in August 1992 the breaches of the recognizance were constituted by further convictions of dishonesty. What Judge Grogan is concerned with at this stage of his remarks was the applicant's criminal history and he did have convictions other than those with which he was then specifically dealing also for dishonesty. Indeed, his criminal record showed that he had committed such offences since 1982 when he was dealt with in the Children's Court on a number of occasions for offences of dishonesty. 22 His criminal antecedents were not before his Honour but it is plain that the comment made by his Honour was in fact correct. (iii) His Honour made a reference to the fact that the day on which he sentenced the applicant was his last day at that location for six weeks. It was suggested his Honour included irrelevant considerations in the exercise of his discretion; again, I do not agree. The remark was made in response to a suggestion that he might adjourn the proceedings in order to be provided with the applicant's criminal history. It was not an expression of a need for haste or a consideration of the question whether he should issue a warrant to ensure the applicant was present for the proceedings. (iv) His Honour said during what amounts to his remarks on sentence "It looks to me as though I would be satisfied from those references that he has committed similar offences before. It seems to me that the sentences in respect of matters that are before me, the break, enter and steal, and the larceny, are surprisingly lenient" and he went on to adopt the course he did. 23 I have also noted that the only offence on which the applicant appeared before Judge Grogan in October 1997 was the one outstanding offence of larceny, all other 1991 offences were completed. 24 In this respect it may be that his Honour was misled by the error already mentioned made by Judge Johnston and he perpetuated that error. Such an error could and one would hope would have been corrected had the applicant been represented in the proceedings before Judge Grogan. Indeed, this appears to bear out the validity of the conclusions twice expressed by this court in Webster and Wilson to the effect that it is preferable that an offender be before the court when sentence is being considered or being passed. (v) It was also suggested that the absence of the applicant's criminal antecedents before his Honour contributed to error. 25 The applicant's criminal history is before this court. At first glance it is not favourable. It was put that had the record been before his Honour and subjected to analysis it would have disclosed that he had no serious offences between 1991 and 1997. This is not strictly correct. It overlooks a series of 57 counts of obtaining benefit by deception for which he was sentenced in September 1992 but other than that it shows that the applicant's criminality during that period concerned only the failure to furnish taxation returns and offences associated with the driving of motor vehicles. 26 This lent some support to the submission to this court that in 1997 the applicant was in fact being dealt with for an offence committed in his youth. He was born in 1969; he is now thirty years of age but at the time of the commission of the offence of larceny he would have been, I think, twenty-two years of age. 27 It is essential to the determination of matters of this kind and the assessment of whether any injustice attended the sentencing in the applicant's absence to know what material could or would have been put before his Honour on the substantive question of the division of the sentence into minimum and additional terms. 28 This court should not have to consider such a question in a factual vacuum. I make the general observation that where an appeal in this court relies upon a party claiming to have been denied the opportunity to put material whether by way of evidence or argument before the court at first instance it will ordinarily be appropriate to have that material or at the very least a synopsis of it available to this court. The more complete the information, the greater the opportunity for this court to give it comprehensive consideration. 29 One relevant factor in the exercise of any discretion upon which reliance is placed in this regard is an assessment of the potential or likely weight to be accorded to such material, its value and an assessment of whether or not it could or would have affected the outcome. This is not to say in every case this court will be in the position to make a final assessment of the effect of the material. The question in each case is whether, given the opportunity to put it before the first instance tribunal or alternatively have it considered by this court on re-sentencing. It would necessarily or probably make a difference to the outcome. 30 In accordance with those views late in the afternoon before the application was listed this court invited counsel for the applicant to produce to it whatever material he would have wished to put before Judge Grogan in order to persuade him to fix minimum and additional terms. The applicant gave oral evidence in this court. In my view the appropriate course where such evidence is to be given is for it to be provided by way of affidavit. The evidence has been taken into account by this court. I must say it is my view if that evidence had been given in the proceedings before Judge Grogan it is unlikely to have assisted him in any material way. He said, in effect, that he did not attend the periodic detention centre because he held employment that involved him in working seven days each week. He said he was more concerned with the problems he was experiencing with his deteriorating marriage than he was with compliance with the court's orders. Indeed, in my view, the effect of his evidence was that he never intended to comply with the periodic detention order. 31 Notwithstanding these facts I am of the opinion that the error asserted in relation to the offences with which Judge Grogan was dealing has been demonstrated. That was a factual error about the number of and the nature of those offences. Judge Grogan believed he was dealing with more than one offence and that they were offences of breaking, entering and stealing. As a result, in my opinion, leave to appeal should be granted, the appeal should be allowed, the sentence imposed quashed and in lieu thereof the applicant be sentenced to a minimum term of thirty-six weeks imprisonment to commence from 20 February 1999 and an additional term of eight weeks. This court should direct that he be released at the expiration of the minimum term. 32 WOOD CJ at CL: I agree and the orders of the court will be 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.