New South Wales Court of Criminal Appeal CITATION : REGINA v. MacFARLANE [2002] NSWCCA 250 FILE NUMBER(S) : CCA No. 60501 of 2001 HEARING DATE(S) : Friday 21 June 2002 JUDGMENT DATE : 21 June 2002 PARTIES : REGINA v. MacFARLANE, Adam JUDGMENT OF : Greg James J at 1; Smart AJ at 47 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0317 LOWER COURT JUDICIAL Naughton, DCJ. OFFICER : COUNSEL : Crown: L.M.B. Lamprati App: C.B. Craigie, SC. SOLICITORS : Crown: S.E. O'Connor App: Sydney Regional Aboriginal Corporation Legal Service CATCHWORDS : Criminal law - sentence - appeal - necessity for sentence to reflect in parole period - entry into long term strict regime rehabilitation from drug addiction. LEGISLATION CITED : Crimes Act 1900 Justices Act 1902 CASES CITED: Pearce (1998) 194 CLR 610 DECISION : The appeal be allowed in part; the appeals on counts three and four be dismissed. On count one, the sentence passed be quashed and in lieu the applicant be sentenced to imprisonment for two years, six months commencing on 20 July 2002 and expiring on 19 January 2005, with, on that count, a non-parole period of six months to expire on 19 January 2003. On count two, the sentence passed be quashed and in lieu a sentence of imprisonment for six months be imposed commencing on 20 July 2002 and expiring on 19 January 2003. The release of the applicant be directed to supervised parole at the expiration of the non?parole period and it be directed that consideration be given to making it a condition of release on parole that the applicant enter immediately into a full?time supervised residential drug rehabilitation course, the duration of that course to be fixed by reference to what is regarded by the Probation and Parole Service as reasonable. IN THE COURT OF CRIMINAL APPEAL No. 60501 of 2001 GREG JAMES, J. SMART, AJ. FRIDAY 21 JUNE 2002 REGINA v. ADAM STEPHEN MACFARLANE Judgment 1 GREG JAMES, J: This is an application by Adam Stephen MacFarlane for leave to appeal against sentences imposed upon him in the District Court at Sydney on 15 June 2001. He pleaded guilty to four offences, the first being that he had broken into and entered an office at the Student Union store in Broadway and there stolen a leather wallet, the property of David Johnson. That offence is contrary to the provisions of s.112(1) of the Crimes Act 1900 which provides for it a maximum penalty of 14 years imprisonment. 2 The second offence was that on 1 February 2001 at Broadway and on the same occasion he did assault David Johnson. That offence is contrary to s.61 of the Crimes Act 1900 and a maximum penalty of two years is provided. 3 The third offence was that he, at Rockdale on 20 January 2001, stole a lady's black wallet. That is an offence under s.117 of the Crimes Act 1900 punishable by a maximum of five years imprisonment. He was also charged that on that latter occasion he assaulted Ahmad Mourad, a security guard. That offence is contrary to s.61 and entails a maximum penalty of two years imprisonment. 4 The matters came forward in consequence of the offences having been charged before a magistrate and pleas having been entered. As to one of the offences the applicant had pleaded guilty to that offence as originally charged as an offence of steal property in a dwelling house. For those matters he was committed to sentence in the District Court under s.51 of the Justices Act 1902. In the District Court that charge of steal property in a dwelling house was altered to one of common larceny and a plea was entered in that court of guilty to that charge in that form in lieu of any further proceedings upon the charge as it had originally been proffered. 5 He was indicted therefore on all the charges in their final form in the District Court on 4 May 2001. He pleaded guilty to all those four charges and was remanded in custody until 15 June 2001 for sentence upon which date the sentences were passed by the learned trial judge as follows. 6 On count one, the count of break, enter and steal, he was sentenced to imprisonment for three years commencing on 20 July 2002 and expiring 19 July 2005. A non-parole period of 15 months to expire on 19 October 2003 was imposed. 7 On count two, he was sentenced to imprisonment for nine months commencing on 20 July 2002 and expiring 19 April 2003. 8 On count three, he was sentenced to imprisonment for one year and six months commencing on 20 January 2001 and expiring on 19 July 2002. 9 On count four, he was sentenced to imprisonment for 12 months commencing on 20 January 2001 and expiring on 19 January 2002. 10 He had been arrested on 20 January 2001 and conditional bail was granted to him. On 1 February 2001 he was arrested in respect of the matters referred to in counts one and two. Bail had been refused to him thereafter and he had been in continuous custody. 11 The learned trial judge, in dealing with the matters, referred to the age of the applicant at the time of the subject offences. He was 22. He came forward for sentence at 23. He is a person of paternal Aboriginal ancestry. His mother is of Anglo-Saxon ancestry. He had, in the past, been convicted of other matters and the learned trial judge referred to his prior record, including a conviction for goods in custody, malicious damage to property and shop lifting in October 1999, in respect of which he received two fixed terms of imprisonment and a two year supervised reconnaissance. 12 On 22 March 2000 he had been sentenced to two years and nine months imprisonment with a non-parole period of 12 months on a charge of break, enter and steal. This constituted a breach of the reconnaissance he received for the previous offences. On 4 December 2000 he was released to parole, which was fixed to expire on 4 September 2002. 13 The instant offences for which the offender had come forward to be dealt with by the sentencing judge had been committed whilst he was on parole. There were breaches of the parole conditions. 14 In addition, as I have already pointed out, the second series of offences were committed while he was on bail for the first. 15 The trial judge declined to take into account a number of other offences which he was invited to take into account on a Form 1. He rightly had regard when sentencing to the principles in Regina v. Pearce (1998) 194 CLR 610 as requiring him to evaluate the individual criminality involved in each offence as well as the totality of the criminality. He referred shortly to the facts of the offences. 16 Dealing with the offences of 20 January 2001 his Honour referred to the fact that the applicant was observed by a security guard in a shopping centre to be acting suspiciously and apparently affected by drugs. He was followed and in due course went into the storeroom at the rear of a store in the premises and was found holding a small black purse in his left hand. He was asked what he was doing and replied "I am looking for money". 17 He apparently moved his hand to the pocket of his shorts and his Honour found:- "He returned his right hand to the front of his body and pointed a capped bloodstained syringe at both security guards. The offender moved his left hand to the syringe and removed the orange cap, which was placed on it. He pointed the syringe in the direction of both security guards. The needle part of the syringe was pointing out. The offender was holding the syringe in a threatening manner. Both security guards felt threatened by that act and felt that the offender had produced a syringe in an attempt to get away. The security guards felt that the offender might stab them with the syringe. They both stepped back from the offender. The guards directed the offender to drop the syringe. He then put it on the ground." 18 As to that matter there was an issue propounded both before his Honour and before us. There was some independent support from the shopkeeper for the proposition advanced by the offender that he produced the syringe, but only in response to the request by the guards that he should do so and that he laid the syringe on the ground almost immediately. 19 He had, when speaking to the psychologist whose report was tendered in evidence and was Exhibit 1 before the learned trial judge on 30 May 2001, dealing with the circumstances of the charges agreed that he had produced the syringe but denied threatening the security guards with it, claiming he had only produced it when directed to do so and had denied holding it for any sinister motive. 20 The trial judge made a finding of fact on the material. So much of that finding of fact was supported by the very plea of the applicant as to show that there was here an assault such as to put the security guard named in fear. 21 At the time of which the applicant however was speaking to the psychologist he acknowledged having been badly affected by medication, having taken apparently some 15 to 20 10-milligram Temazepam tablets. Temazepam is apparently a sedative hypnotic medication. The applicant had apparently taken that medication in order to cope with drug withdrawal symptoms. 22 The psychologist noted that that medication can produce a variety of effects including sedation and confusion and surmised that the judgment of the applicant would have been significantly impaired as a result of consuming this substance. The psychologist also adverted to the effect of cocaine and heroin use/dependency on judgment and general state. 23 Although criticism was made here of the trial judge's findings I am unable to accept that, having regard to the statements before him, particularly from the security guards and considering the plea, that it was not open to the trial judge to hold that the syringe was held and produced in the manner indicated. It is notable that the trial judge does not refer in these detailed findings to the intention of the applicant when so holding the syringe, but rather the perception of the guards to whom the syringe represented a threatening object. 24 His Honour held that the threatening of the guards with the syringe was in law an assault. 25 The matters comprised in counts one and two were committed when, on 1 February 2001, Mr. Johnson, the person named in the indictment, went from his private office to the store at the rear of the Student Union premises in the University of Technology building at Broadway. On leaving his office he closed the door. He went to the front counter and began talking to the store attendant. He walked back to his office. The offender was inside the office crouched down next to his desk with Mr. Johnson's backpack in his hands. When asked what he was doing the offender said "just looking". He attempted then to leave the premises by an emergency exit door. Mr. Johnson courageously stopped him. The offender placed his hand into his tracksuit pants pocket and said, "if you don't let me go I'm going to stick this into you". 26 Mr. Johnson believed, the trial judge found, and had reasonable grounds to believe that the offender was in possession of and was indicating a syringe inside his pocket. Mr. Johnson attempted to restrain him while waiting for help to arrive and the offender dropped the brown leather wallet, which is the wallet referred to in count one in the indictment, the property of Mr. Johnson. 27 The offender sustained some injuries to his face and upper body and he induced in Mr. Johnson a state of fear through the representation that he had and would use the syringe. 28 The trial judge found that those matters supported the offences to which the applicant had pleaded guilty. 29 Both on this occasion and on the former occasion he gave to the police, when brought to them, false names. 30 In respect of those matters he said to Mr. Champion, the psychologist, that he denied having assaulted the shopkeeper, claiming he had been grabbed by the shopkeeper which resulted in a brief wrestling match. He denied being under the influence of drugs on that occasion, although he did report attempting to steal to purchase drugs for which he was "hanging out". He reported general remorse to Mr. Champion for these offences, asserting that he was aware that what he had done was wrong, though contending that he had not acted in a violent or aggressive fashion on either occasion. 31 He tended, according to Mr. Champion, to place greater emphasis on the effect that the charges had on him and in particular on his return to incarceration, rather than having regard to the rights and well-being of others, but did acknowledge that his behaviour was inconsistent with his religious beliefs and therefore inherently wrong and indicated a desire to avoid further criminal offending. 32 In evidence before the trial judge the applicant referred to his remorse in a passage in evidence commencing on page 5 of the transcript:- "Q. You know there were two different people in relation to the two matters, the two assaults before the court? A. Yes. Q. What do you tell his Honour about the effect this had on those people - are you sorry? A. Yes. Q. Because of the effect on them? A. Yes, sorry. Q. Is it fair to say when you spoke before you told me that? A. Yes. Q. I didn't suggest it, you told me? A. Yes. Q. Because of the effect on those people you were sorry for the effect on them? A. Yes." 33 The trial judge also referred to the applicant's prior record noting criminal antecedents going back to 1994 when the applicant was 16. There had been matters of illegal use of motor vehicle, carrying offensive implement in a public place, malicious destruction or damage to property in respect of which he had been given probation requiring drug and alcohol counselling. In 1997 he was convicted of common assault and fined. In 1998 he received a sentence of six months imprisonment for break, enter and steal. 34 Also in that year he received a fixed term of imprisonment for goods in custody and a fixed term of one month imprisonment for possess prohibited drug and six months for receiving stolen property. In August various offences relating to breaking and entering and dishonest use of motor vehicles resulted in a fixed term of imprisonment. 35 In 1999 an offence of stealing from the person was punished by a fine, a larceny by a fixed term of imprisonment for two months and he was punished for offences of malicious damage to property and other offences for which, in addition to a short sentence of imprisonment, he received two years reconnaissance conditioned upon there being supervision. There were offences of break, enter and steal attracting a minimum term of 12 months in 2000 and additional terms subject to supervision and conditions that he undergo alcohol and drug rehabilitation. 36 In evidence before his Honour the offender said, and his Honour accepted, that a live-in drug and rehabilitation counselling and/or treatment course at Bennelong Haven had been arranged for him by his mother. 37 His Honour rejected, and referred to this rejection on a number of occasions in his remarks, that the offender was sorry. In particular he did so because of the form of the questions that had been asked of the applicant when he gave evidence in the passage that I have cited. His Honour concluded that he was not prepared to accept that the offender had shown any realistic contrition or remorse. He refers to that finding as reinforced by evidence contained in the psychologist's report, that in an interview with the psychologist on 30 May 2001 the offender denied each of the subject assaults. 38 For my part, I do not regard that finding as fairly based on that material. The offender appears to have accepted a considerable degree of the factual matrix, though in a confused state certainly as far as the offences at the Rockdale shopping centre are concerned, but did not accept the intention on his part to cause harm or threaten harm to his victims. 39 Further his Honour continues, "there was no oral evidence in support of the offender other than his own". There was, however, some support for some mitigation of the crime at Rockdale in the evidence of the shopkeeper. 40 All of that said, there was material from the offender given to Mr. Champion and in evidence before his Honour, which his Honour appears to have accepted, of a real willingness on the offender's part, this time, to undergo an appropriate strict regimen of drug rehabilitation, notwithstanding the extensive history of drug abuse and dependency arising from the offender's sad, deprived childhood and upbringing for which his Honour offered sympathy. 41 Some criticism was made of his Honour's remark, "many people have deprived childhoods and do not abuse drugs and do not commit crimes". I would not regard that remark as intended by his Honour to qualify in any way the appropriateness of this applicant undergoing an appropriate rehabilitation regime, nor of his willingness to undertake it. His Honour noted the recommendation of the psychologist that there be such a regime as the "best chance for effective change to be made and maintained in Mr. MacFarlane's lifestyle and hence offending" when his Honour summarised some of the statements of relevance by the psychologist. 42 His Honour recognised that the plea of guilty had utilitarian value, but allowed only a discount of 10% for it. He concluded he could find no other matters in mitigation. He concluded that he should allow the offender to try to rehabilitate himself and then, having regard to the totality of the matters, imposed the sentences to which I have referred. He found special circumstances justifying the variation of the statutory ratio as lying in the age of the offender and the need for a significant period of supervised parole for the purposes of proper rehabilitation, having regard especially to his period of incarceration and his drug problem. 43 His Honour directed release on parole and that the parole be supervised, but did not translate into this a recommendation for the placing of the applicant in a supervised long term strict rehabilitation facility such as had been referred to by Mr. Champion and referred to in evidence. 44 It is apparent that these offences were both committed when the applicant was in some considerable state of confusion and for the purpose of obtaining money to use for drugs. The sentences that his Honour had passed were, in my view, affected by affording far too little regard to the utilitarian value of the pleas of guilty, and the possibility of rehabilitation, particularly having regard to what had been said to Mr. Champion. It does appear that there was some, though perhaps not full and forthright, contrition evidenced by what the applicant had told Mr. Champion. That matter is important as adding substance to the prospects of rehabilitation that his Honour had determined were there, and when one has regard to the fact that any release from gaol, if on parole to a supervised long term residential rehabilitation facility to which I have referred, will have the nature of being quasi custodial and that it is in the interests of the community generally that where such rehabilitation can be achieved it should be, I have concluded that his Honour's allowance in the overall sentence of a reduction in proportion of non-parole to head sentence is insufficient. 45 I would conclude therefore that having regard to the totality of those matters, the sentences as passed have fallen into error and that the appropriate course to take would be to allow the application for leave to appeal, to allow the appeal in part and on the first count, that is the count of break, enter and steal, to impose a cumulative sentence of two and a half years imprisonment to commence on 20 July 2002 and to expire on 19 January 2005 and a six months non-parole period on that first count. Otherwise the sentences to remain undisturbed. So, I propose the appeal be allowed in part, the appeals on counts three and four be dismissed. On count one, the sentence passed be quashed and in lieu the applicant be sentenced to imprisonment for two years, six months commencing on 20 July 2002 and expiring on 19 January 2005, with, on that count, a non-parole period of six months to expire on 19 January 2003. 46 On count two, the sentence passed be quashed and in lieu a sentence of imprisonment for six months be imposed commencing on 20 July 2002 and expiring on 19 January 2003. The release of the applicant be directed to supervised parole at the expiration of the non-parole period and it be directed that consideration be given to making it a condition of release on parole that the applicant enter immediately into a full-time supervised residential drug rehabilitation course, the duration of that course to be fixed by reference to what is regarded by the Probation and Parole Service as reasonable. 47 SMART, AJ: I agree. 48 GREG JAMES, J: The orders will therefore be as I have 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.