New South Wales Court of Criminal Appeal CITATION : Regina v Dunn [2001] NSWCCA 134 FILE NUMBER(S) : CCA 60088/00 HEARING DATE(S) : 2 April 2001 JUDGMENT DATE : 2 April 2001 PARTIES : Regina v Graham John Dunn JUDGMENT OF : O'Keefe J at 21; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/1179 99/21/1180 99/21/1224 LOWER COURT JUDICIAL Armitage DCJ OFFICER : COUNSEL : (A) J S Andrews (R) E Wilkins SOLICITORS : (A) C Hunter (R) S E O'Connor CATCHWORDS : Sentencing - judge not referring to issue of special circumstances when they were present - non-parole period adjusted LEGISLATION CITED : Nil CASES CITED: Nil DECISION : (a) Leave to appeal granted - Appeal allowed - Sentences quashed (b) In lieu of the sentences imposed the applicant is sentenced on each count, the charge of stealing having been taken into account, to imprisonment for 2 years 8 months commencing on 3 January 2000 with a non-parole period of 20 months starting on that day and ending on 2 September 2000. The applicant is to be released on parole on 3 September 2001 subject to the supervision of the Probation and Parole ervice and on appropriate conditions designed, amongst other things, to foster his rehabilitation from drugs. IN THE COURT OF CRIMINAL APPEAL 60088/00 O'KEEFE J SMART AJ Monday, 2 April 2001 REGINA v GRAHAM JOHN DUNN JUDGMENT 1 SMART J : Graham John Dunn seeks leave to appeal against the severity of a sentence comprising a minimum term of imprisonment of 2 years and an additional term of 8 months in respect of each of five counts of break enter and steal committed between 29 November 1998 an 2 January 1999. A further offence of stealing was taken into account. The sentences were concurrent. 2 I have taken the facts from the judge's succinct summary. All the offences were committed while the applicant was subject to a recognizance in respect of other matters. All the offences involved breaking into private dwellings and stealing property from them, including jewellery. The value of the property stolen from Mrs Smyth on 5 December 1998 was $17,956 and that stolen from Mr Baker about $15,870 (taking the lower figure in the papers). The property the subject of the three remaining offences was valued at $2,215, $4,020 and $1,149. The applicant left fingerprints at each dwelling. On each occasion damage was caused to the premises and on some occasions they were ransacked. No property has been recovered. 3 The applicant refused to answer questions about the offence involving Mrs Smyth. As to the offence involving Mr Hodgkinson and $1,149, the applicant stated that he did not remember much due to his use of drugs. He did not wish to be interviewed. As to the offences involving the theft of $2,213, $15,870 and $4,020, the applicant declined to be interviewed electronically. He claimed he had no recollection of any of the offences due to a severe drug addiction at the time. At one stage the applicant told the police that he and two accomplices had been spending about $800 per day on drugs. The applicant was unwilling to name his accomplices. 4 The applicant was born on 29 December 1973. In 1990-1991 he committed a lot of offences which were dealt with in the Children's Court. There were driving offences and dishonesty offences. He possessed car-breaking implements and stole motor vehicles. He was placed on probation and fined. Control orders were made against him. He was ordered to perform Community Service. In 1992 he committed driving offences. In 1993 he was convicted of assault occasioning bodily harm for which a nominal sentence was imposed and committing a breach of an apprehended domestic violence order. No offences were recorded between late 1993 and early 1998 when the applicant was sentenced to 3 months periodic detention for shoplifting and placed on a recognizance for four years for stealing. The matter dealt with in early 1998 related to an offence committed in 1997. 5 In April 1998 the applicant was sentenced to imprisonment for 12 months with an additional term of 4 months. There were many offences of break and enter with intent to commit a felony. In March 1999 he was dealt with for further dishonesty offences. As the Judge remarked, "the best that can be said of his criminal record ... is that it is of no assistance to him". 6 The pre-sentence report reveals that the applicant did well at school until 1986 when the family had to accept assistance from the Department of Housing and move to Macquarie Fields. After repeated bashings at his new public high school where he started in Year 8, he formed associations with a negative peer group, began performing poorly at school and truanting. By the end of Year 9 he had been expelled from school. He failed to complete any further schooling. However, he did complete part of a TAFE course in carpentry. He needs to complete further subjects in the TAFE course. 7 The applicant has had a long history of cannabis use followed by a long history of heroin use. At the time of the offences, it was a very costly habit. The report records that the drug and alcohol counsellor at Parramatta Correctional Centre advised that the applicant had maintained regular contact and that he "would benefit from ongoing individual counselling in the community after release and regular urinalysis to monitor any relapse to drug use". 8 The Probation and Parole officer concluded: "For the past eight years, Mr Dunn has lived an itinerant lifestyle characterised by drug use which has resulted in estranged family relationships and repeated contact with the Court system. The offender's commencement on the methadone program, recent contact with drug and alcohol services, and possibility of rebuilding relationships with his family seem to indicate a commitment to achieving some stability upon return to the community". 9 Taken as a whole, the report of the officer could be described as guarded. There are some grounds for hope but whether they will materialise is a moot question. 10 Miss Barrier, a psychologist, saw the applicant in gaol on 25 January 2000. She provided a more detailed history. She expressed these opinions: "Graham's presentation at our interview, together with his personal history, indicates an intelligent, articulate and potentially capable man. When the family was forced to move locations when Graham was 13 he perceived the only way to survive in his new school was to join his new peers in undermining his previous sound academic performance and engaging in delinquent activities. This led to his early compulsory exit from school. Graham continued to associate with these peers until he was sentenced to a period in a juvenile detention centre. This period of incarceration proved a positive experience for this client and it would seem that on his release he was able to lead a crime free lifestyle for some years. However, during this time he does describe ongoing interpersonal difficulties with family members and with his defacto Tania because of the level of his substance abuse (marijuana). After commencing heroin use in 1997 Graham's history indicated he quickly formed a habit, then began committing property offences to support his heroin use. His current offences were committed during the same time frame as those for which he has just served a 12 month sentence. Graham does appear to have made a commitment now to changing his lifestyle and attitudes. There are a number of factors contributing to this change. Part of his current sentence has been spent in Goulburn, a maximum security prison and this experience has seriously alarmed and frightened him. He is aware that those closest to him, including his former defacto Tania, are offering support and a last chance to redeem himself. He is on a Methadone maintenance program for the first time and intends to remain on this for some time after his next release. He is realistic in his comments that he is aware he remains vulnerable to drugs relapse and would benefit from professional intervention to assist him in his resolve." 11 The judge had regard to Ms Barrier's report. He also had other material. He noted that the applicant's mother thought he had changed a lot over the past 12 months and was not now blaming everyone else for his mistakes. The report of the applicant's Wing officer and case officer in gaol states that his behaviour and work performance have been of a good standard. 12 The judge thought that there was some prospect of rehabilitation. He took into account the applicant's pleas of guilty. They were entered at an early stage, thus enabling the matter to be dealt with by way of committal for sentence at an early stage. 13 The judge was moved by the seriousness of the offences looked at objectively, that there were five of them, the value of the property stolen being quite large in some cases, that private homes were broken into with some damage to them and that the offences were committed whilst the applicant was on recognizance. No property had been recovered. 14 The judge did not mention the matter of whether there were special circumstances and whether a longer additional term should be imposed. The reports of the Probation and Parole officer and the psychologist point in that direction. These are matters with which a sentencing court would usually deal, given the material before the court in the present case. 15 The applicant has not attacked the head sentences imposed, nor could he. The question is whether there should be a shorter minimum term and a longer additional term so as to enable there to be a longer period of supervision and support on his release from gaol. 16 As the applicant's counsel pointed out, the applicant was in gaol from 9 April 1998 to 8 October 1998 and again from 4 January 1999 to 3 January 2000. This latter sentence covered other offences committed in approximately the same period as those the subject of the sentences the subject of this application. When that sentence is combined with the current sentences it means that the applicant for offences committed in approximately the same period will serve 3 years by way of minimum term and but 8 months by way of an additional term. This departs from the usual ratio of 3 to 1. Combining the sentences results in a total sentence of 44 months (3 years 8 months). The usual ratio of 3 to 1, absent other special circumstances, would produce an overall sentence of 33 months by way of minimum terms and 11 months by way of an additional term. 17 Where the effect of the combination of the sentences is to result in an additional term which is less than one quarter of the total sentences, that is regarded as a special circumstance and one that may lead to the adjustment of the minimum and additional terms. This was a matter which needed to be dealt with. It is not mentioned nor did the judge deal with the other aspect of special circumstances arising from the need for extended supervision and support in furtherance of rehabilitation. The experience of this Court is that those suffering from prolonged drug abuse need extended help on their release to avoid a relapse. Special circumstances exist and they require an adjustment of the minimum and additional terms. 18 A further matter arises. Would a minimum term of less than 2 years gaol inadequately reflect the criminality involved? I do not think so because regard must be had to the minimum term to which the sentence has been added and the overall period to be spent in custody. Usually when an adjustment is made because of the combination of sentences, the minimum term on the last sentence is necessarily less than it would otherwise be. 19 I propose the following orders: (a) Leave to appeal granted. Appeal allowed. Sentences quashed. (b) In lieu of the sentences imposed, the applicant is sentenced on each count, the charge of stealing having been taken into account, to imprisonment for 2 years 8 months commencing on 3 January 2000 with a non-parole period of 20 months starting on that day and ending on 2 September 2001. 20 The applicant is to be released on parole on 3 September 2001 subject to the supervision of the Probation and Parole Service and on appropriate conditions designed, amongst other things, to foster his rehabilitation from drugs. 21 O'KEEFE J : I agree. The orders of the court will be as proposed by Smart AJ. ******** 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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