New South Wales Court of Criminal Appeal CITATION : R v Miles [2001] NSWCCA 274 FILE NUMBER(S) : CCA 60012/01 HEARING DATE(S) : 12 July 2001 JUDGMENT DATE : 17 July 2001 PARTIES : Regina v David John Thomas Miles JUDGMENT OF : Hodgson JA at 1; Mathews AJA at 2; Studdert J at 3 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0885 LOWER COURT JUDICIAL Woods ADCJ OFFICER : COUNSEL : C. Maxwell QC (Crown) T. Game SC (Respondent) SOLICITORS : S.E. O'Connor (Crown) Brezniak Neil-Smith & Co. (Respondent) Criminal Appeal Act LEGISLATION CITED : Crimes (Sentencing Procedure) Act Drug Court Act R v Tindall & Gunton (1993) 74 ACrimR 275 Attorney General's Application No. 1; R v Ponfield & Ors (1999) 48 NSWLR 327 CASES CITED: R v Griggs 111 ACrimR 233 R v Wilton (1981) 28 SASR 362 R v Allpass (1994) 72 ACrimR 561 Everett v The Queen (1994) 181 CLR 295 DECISION : Crown appeal dismissed. Remitted to the District Court for hearing on 23 November 2001. Bail conditions to continue in the interim. IN THE COURT OF CRIMINAL APPEAL 60012/01 HODGSON JA MATHEWS AJA STUDDERT J Tuesday 17 July 2001 REGINA v DAVID JOHN MILES JUDGMENT 1 HODGSON JA: I agree with Studdert J. 2 MATHEWS AJA: I agree with Studdert J. 3 STUDDERT J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act against an order made by his Honour Acting Judge Woods in the District Court at Sydney pursuant to s 11(1) of the Crimes (Sentencing Procedure) Act 1999. 4 The respondent to the appeal pleaded guilty at the Downing Centre Local Court to thirty counts of break enter and steal, two counts of break and enter with intent to commit an offence and to one count of attempt to break and enter with intent to commit an offence. In respect of these matters the respondent was committed for sentence to the District Court and in that court on 16 November 2000 he adhered to the pleas previously entered. 5 The matters came before his Honour Acting Judge Woods on 15 December 2000 and, having heard evidence from the respondent and his father, his Honour adjourned the proceedings until 23 November 2001 pursuant to s 11(1) of the Crimes (Sentencing Procedure) Act. The respondent was granted bail on these conditions: (i) that he attend for sentence on 23 November 2001; (ii) that in the meantime he reside at 8 Nelson Street, Rozelle, that being the home of his parents; (iii) that he accept the supervision of the New South Wales Probation and Parole Service and undertake counselling as advised; (iv) that he continue with a regime of urine testing at the Phoenix Group and continue with naltrexone treatment as determined by that group. 6 The Crown gave notice of appeal promptly on 3 January 2001. 7 The offences committed by the respondent and to which the proceedings in the District Court related were committed in the Sydney metropolitan area between 1 June 2000 and 23 August 2000. Nineteen of those offences were committed whilst the respondent was on bail and all the offences involved forced entry to private homes and the taking of personal property valued at no less than $88,000 altogether. In eight of the premises entered rooms were left in a state of disarray. The respondent's fingerprints were found at the scene of twenty of the crimes but there were ten cases in which the respondent made admissions where otherwise there was no incriminating evidence against him. 8 In January 2000 the applicant had been convicted of a count of larceny and a count of obtaining money by deception at the Gosford Local Court. He was ordered to perform in aggregate for these offences 250 hours of community services which he did not complete. The community service order was revoked on 17 August 2000 and the respondent was then released on a bond under s 9(1) of the Crimes (Sentencing Procedure) Act on a number of conditions, one of which required that he accept the supervision of the Probation and Parole Service and comply with drug testing as directed by it and, further, that he continue the naltrexone programme, which he was then undergoing. That programme was identified as being under the supervision of Dr Peter Cox. The respondent was also required to see a psychiatrist, Dr Gray, and to comply with all requirements of supervision and treatment under the supervision of the programme director of Phoenix Health Group Pty Limited by whom the naltrexone was being administered. 9 It is to be observed that those conditions were reflected in the terms of the bail later set by his Honour Acting Judge Woods. 10 The respondent is twenty-two years of age, having been born on 27 September 1978. The subject offences were committed whilst he was twenty-one years old. He left school at the end of year 10 and began an apprenticeship as a chef. He had completed all but six months of that course as at December 2000. The evidence before the District Court was that at the age of nineteen he met and began an association with a young woman two years younger than him and together they became involved in drug abuse. The crimes presently under consideration were crimes plainly committed to provide the funds to feed the respondent's drug habit. The association with the young woman had ceased prior to the hearing before Acting Judge Woods. 11 On 31 August 2000 the respondent underwent a rapid detoxification procedure using naltrexone. This required him to stay in hospital overnight and to take medication for the next twelve months. From the time he embarked upon the procedure until the time the District Court proceedings were adjourned, he lived at home under the care of his parents, taking the medication prescribed and undergoing urine tests. He also attended regular psychiatric consultations with Dr Gray. The programme was an expensive one and the funds necessary were provided by the respondent's parents. 12 The respondent, as at the date the proceedings in the District Court were adjourned, had a position to go to at the Roseville Marina to work as a chef. 13 The sentencing judge had reports before him from the programme director of Phoenix, Mr Sorensen. On 17 October 200 Mr Sorensen wrote: "I would like to confirm that Mr David Miles had a rapid detoxification procedure performed by Dr Peter Cox at the Poplars Private Hospital Epping on the 31st of August 2000. He stayed in hospital overnight and was released into the care of his parents on the morning of the 1st of September 2000… Dr Peter Cox is of the opinion that Mr David Miles has been successfully detoxified and that if he engages in continued rehabilitation over the coming months there is a strong chance that he will recover from his opiate addiction and start to function in society in a normal way." 14 Then on 8 November 2000 Mr Sorenson wrote: "Mr Miles has been attending therapy sessions with Dr Richard Gray in his rooms at Ashfield. He has not attended any subsequent sessions at our rooms. The contact we have had has been only to order urine drug screens for him. However he has been progressing well under the director of Dr Richard Gray and continues to take his medication as is verified by his pathology results. His long-term treatment cannot be properly planned or managed until his legal issues are finalised and or resolved. In the past with patients who have been in similar circumstances we have recommended that any sentencing should include regular urine drug screens over an extended period of rehabilitation. Added to this continued therapy engagement would only improve the probability of long-term rehabilitation." 15 In the latest of the reports before the District Court from Dr Gray, and this followed no less than six consultations, Dr Gray opined on 13 December 2000: "In my opinion, if David were to go to prison it would be detrimental to his drug rehabilitation and his physical and mental health. Complying with bail in order to avoid prison has been very effective in promoting his drug rehabilitation. In prison he would be re-exposed to drug taking, be exposed to the influence of more hardened drug users, experience greater stress which would prompt drug use for alleviation, be exposed to unsafe injecting practices and foster a self view as a criminal rather than as someone capable of making a contribution to his family and society. Past behaviour is the best predictor of future behaviour. It would appear so far that David has complied very well with the bail conditions. This suggests that he may well be capable of complying with a court order or non-custodial sentence which entailed similarly strict supervision requirements. His best chance of rehabilitation probably lies with the perpetuation of a drug-free lifestyle and establishment of alternative habits and behaviours by way of strict supervision requirements and urine testing supported by appropriate disincentives to non-compliance. His fear of going to prison has, in my opinion, been the predominant force supporting his abstinence from heroin and adherence to the bail conditions. Were he to actually go to prison this fear may be reduced and become a less effective motivation to abstinence in the future." 16 It has been submitted by the Crown that the course adopted by the learned judge in adjourning the sentencing proceedings manifested error upon the basis that proceedings ought only to be adjourned under s 11 where in the event that rehabilitation and reform are achieved during any period of adjournment it would be appropriate to impose a non-custodial sentence: see R v Tindall & Gunton (1993) 74 ACrimR 275. It was submitted that, having regard to the respondent's criminality, whatever the outcome of rehabilitation, it would not be appropriate to impose a non-custodial sentence and that, indeed, regardless of such outcome, the objective gravity of the respondent's misbehaviour would require a significant term of full-time custody in order to have due regard to fundamental considerations of deterrence and retribution. 17 Whether this is so or not is the essential question to be determined on this appeal because it has been argued on behalf of the respondent that manifest inadequacy would not be established if, at the date when the applicant comes to be sentenced, he has complied with the terms of his bail, overcome his addiction and become effectively rehabilitated. 18 The Crown referred to Attorney General's Application No. 1; R v Ponfield & Ors (1999) 48 NSWLR 327 and to the identification of factors bearing upon the seriousness of the offence of break enter and steal and such as ought to have been reflected in sentencing: see, in particular, the guidelines in para 48 of the judgment of Grove J. Features enhancing the seriousness of the offences committed by the respondent, according to those guidelines, have been identified by the Crown, and these include that for nineteen of the offences, as I have already observed, such were committed whilst the respondent was at liberty on bail. 19 It is evident that his Honour was influenced in the course he adopted not only by the evidence which the respondent gave before him but also by the evidence given by the respondent's father. His Honour was also plainly influenced, as the transcript records, by the youth of the respondent, and by the circumstance that all the offences were committed in a short period of time for the purpose of feeding the respondent's drug addiction. The Crown submits though that the judge gave too much weight to those subjective matters and thus fell into error. 20 Those submissions advanced on behalf of the Crown warrant the closest consideration, but, having considered the competing submissions, I am not persuaded that this Court should interfere with the course decided upon by the District Court judge. 21 The evidence was that at the time of the commission of these offences the respondent was not only young but immature and vulnerable to the influence of others. He cooperated fully with the police and by the time he came before the judge he had made real efforts to address his addiction, supported as he was in a very significant way by his parents. It seems to me that the course taken was properly perceived by the sentencing judge to afford the respondent what amounted to a realistic opportunity for rehabilitation. This is so having regard to what Dr Gray and Mr Sorensen had written. 22 Exhaustive consideration of sentencing options other than full time custodial sentences assumes special importance in the case of young offenders who have real prospects for rehabilitation: see R v Griggs 111 ACrimR 233 and the judgment of Simpson J at para 37. 23 His Honour did not give formal reasons for the course that he adopted but the transcript makes it clear that his Honour did recognise that offences such as those committed by the respondence could generally be expected to attract a heavy custodial sentence. His Honour said (AB 31): "Initially at first glance these matters, because of the amount involved and the disruption to so many people's lives that these offences have caused, initially any court would have to straight away immediately consider a very heavy gaol sentence even on a plea of guilty…" 24 In the course of the proceedings in the District Court, it was pointed out to his Honour that the respondent was not eligible to be dealt with under the Drug Court Act 1998 because he did not meet the residential qualifications imposed by para 5 of the Regulation under that Act. The judge was therefore unable to refer the respondent to the Drug Court to be dealt with for the offences charged and the respondent was not eligible to enjoy the opportunities which the provisions of that Act may otherwise have afforded him. Mr Game nevertheless submitted that it was proper for his Honour to keep in mind the objectives of the Drug Court Act expressed in s 3 of the statute expressing as they do the will of the legislature in relation to drug offenders. The objectives expressed in s 3 include the provision of a scheme for drug-dependent persons to eliminate or at least reduce their dependency on drugs and thus increase the ability of such persons to function as law-abiding citizens. There seems to me to be some merit in Mr Game's submission. Whilst the judge was not able to make an order under s 6 of the Drug Court Act to refer this respondent to the Drug Court, the course which he took could be viewed as in sympathy with the scheme of the Drug Court Act. That is by no means determinative of this appeal, but I accept Mr Game's submission that this is a factor that should be weighed. 25 I consider that it was open to his Honour to conclude that the particular circumstances of this case justified the approach he adopted. If the respondent fails to comply with the bail conditions which have been imposed upon him, his bail will, of course, be revoked and he will be brought back before the sentencing judge. Should there be anything less than strict compliance, and should any of the regular urine tests prove positive, the respondent would face the almost certain prospect of a full-time custodial sentence. However, should there be no breach of the stringent requirements which the respondent must face under the terms of the adjournment granted, the respondent would present for sentence in November next able to advance very powerful subjective considerations, and the sentencing judge could then determine an appropriate sentence giving such circumstances their due weight. 26 If, contrary to the opinion I have expressed, the decision here challenged should be considered erroneous, this is not a case in which, in my opinion, this Court should now intervene. Discretionary considerations would arise. 27 The transcript of proceedings in the District Court discloses that the judge made it clear to counsel for the Crown that he was contemplating the course he eventually took in adjourning the proceedings. The transcript further reveals that counsel for the Crown did not submit that such a course would be beyond the proper scope of his Honour's discretion. This is a factor to be taken into account here and such as should, in my opinion, influence this Court not to allow this appeal in any event if error was otherwise considered to have been shown: see as to this R v Wilton (1981) 28 SASR 362 at 367-368; R v Allpass (1994) 72 ACrimR 561 at 566; and Everett v The Queen (1994) 181 CLR 295 at 302-303. 28 Moreover, seven months have now elapsed since the proceedings in the District Court were adjourned. This appeal was given an earlier hearing date in March 2001 but that earlier hearing date was vacated; this Court was informed that the hearing was adjourned on the application of the Crown. Material has been placed before this Court which would be relevant to discretionary considerations. This material deals with the respondent's behaviour since December last. It seems he has been in regular employment and there is a favourable reference from his employer. Dr Gray has furnished a report of 29 June 2001 reporting attendances on him by the respondent on thirteen occasions this year. Dr Gray has reported that the respondent has on all occasions presented free of any signs of intoxication. His report concludes: "The prognosis at this stage looks very favourable, provided David can remain in full time employment, continues to receive the support of his parents, continues to have the incentive provided by the Griffith's remand to stay away from heroin, and he continues to receive regular counselling and urine drug testing. If his lifestyle were to be disrupted by a term of imprisonment I think that would be extremely detrimental to his drug rehabilitation and his prospects for continuing his existing heroin and crime free lifestyle. The longer he sustains a heroin free lifestyle the more he has to lose by jeopardising it, the more habitual and comfortable it becomes and therefore the more likely it is to be maintained." 29 It is to be noted that there is a disturbing reference to some consumption of marijuana and cocaine but there are no details about such consumption in the report. If, in fact, there has been any abuse of either of those drugs then when the respondent appears to be sentenced he can expect the sentencing judge to take a very serious view of such behaviour. 30 However, the favourable material that has been placed before the Court as to the respondent's progress over the past seven months is another matter which, in my opinion, would properly fall for consideration in the exercise of this Court's discretion. 31 For the above reasons, I do not consider this Court should intervene. Provided there is strict compliance with the conditions of bail, the respondent should be permitted to remain on it until the date that has been appointed for him to appear for sentence in November next. 32 I propose therefore that the appeal by the Crown be dismissed and the matter be remitted to the District Court for hearing on 23 November 2001, subject to strict compliance by the respondent with the existing bail conditions which are to continue in the interim. ************** 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.