New South Wales Court of Criminal Appeal CITATION : REGINA v JELISAVAC [2003] NSWCCA 107 HEARING DATE(S) : 18 December 2002 JUDGMENT DATE : 16 April 2003 JUDGMENT OF : Adams J at 1; Smart AJ at 13 DECISION : 1. Leave to appeal be granted 2. The appeal be allowed as to the sentences on Counts 3,8 & 9 and such sentences be quashed 3. In lieu thereof the applicant be sentenced as follows: (a) In respect of count 3 to 7 years 6 months imprisonment to commence 02.08.01 with a non-parole period of 3 years 6 months to expire on 01.02.05 (b) In respect of counts 8 & 9 to a fixed term of 2 years 3 months imprisonment to commence 02.11.02 and expire 01.02.05 4. The sentence in relation to count 4 is quashed and in lieu thereof is substituted a fixed term of 2 years 6 months to commence on 02.08.02 and expire on 01.02.05 5. The intended effect of these orders is that the head sentence is to remain the same but the non-parole period be reduced by 1 year CATCHWORDS : Sentence appeal - plea of guilty - utilitarian value - effect of evidence of contrition LEGISLATION CITED : Criminal Appeal Act 1912 s 6(3) Crimes (Sentencing Procedure) Act 1999 s 44(2). CASES CITED : The Queen v Thomson & Houlton [2000] 49 NSWLR 383; 115 A Crim R 104 Regina PARTIES : v Michael Jelisavac FILE NUMBER(S) : CCA 60387/02 COUNSEL : A C Haesler (Crown) E A Wilkins (Accused) SOLICITORS : D J Humphries (Crown) S E O'Connor (Accused) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0135 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60387/02 ADAMS J SMART AJ 16 APRIL 2003 REGINA v MICHAEL JELISAVAC Judgment 1 ADAMS J: : The applicant pleaded guilty in the Local Court on 5 February 2002 to two counts of obtaining money by deception, two of breaking, entering and stealing in circumstances of aggravation, one of breaking and entering with intent to commit a crime in circumstances of aggravation and four counts of breaking, entering and stealing. When the applicant appeared for sentence in the District Court on 24 May 2002, he adhered to those pleas and requested sixteen other offences to be taken into account, five of which were breaking, entering and stealing, two were obtaining a benefit by deceit, escaping lawful custody, possessing housebreaking implements, resisting arrest, having goods in custody suspected of having been stolen or dishonestly obtained, stealing a motor vehicle and being carried in a stolen motor vehicle. These offences occurred from late 1988 until he was taken into custody on 2 April 2001. At that time the applicant was serving a term of nine months periodic detention on a number of charges, including breaking and entering with intent to commit a crime, possession of housebreaking implements, goods in custody suspected of having been stolen, obtaining money by deception and two counts of larceny. In the circumstances the effect of the Crimes (Sentencing Procedure) Act 1999 was that, from 2 April 2001, he was required to serve the fulltime reflection of the sentences which expired on 9 February 2002. The issue therefore arose for the learned sentencing Judge as to whether, and if so to what extent, some credit should be given for that period. No complaint is made in this appeal as to this matter. The applicant was sentenced, with respect to two counts of obtaining a benefit by deception, to a fixed term of imprisonment commencing on 2 August 2001 and expiring on 1 August 2002. With respect to the first offence of aggravated breaking, entering and stealing, taking into account the matters on Form 1, the applicant was sentenced to imprisonment for seven years and six months commencing on 2 August 2001 and expiring on 1 February 2009 with a non-parole period of four years and six months to commence on 2 August 2001 and expire on 1 February 2006. In respect of the offence of aggravated breaking and entering with intent to commit a crime, the applicant was sentenced to a fixed term of three years commencing on 2 August 2002 and expiring on 1 August 2005. In relation to three offences of breaking, entering and stealing, the applicant was sentenced to imprisonment for fixed terms of two years and three months, each commencing 2 August 2001 and expiring on 1 November 2003. 2 In respect of the remaining counts of aggravated breaking, entering and stealing and breaking, entering and stealing, the applicant was sentenced to concurrent fixed terms of two years and three months commencing 2 November 2003 and expiring on 1 February 2006. It will be seen that the overall effect of these sentences was that the applicant was sentenced to seven and a half years imprisonment with a non-parole period of four and a half years, so that he was eligible for release to supervised parole on 1 February 2006. 3 The applicant's appeal came on for hearing on 18 December 2002. The Court considered that the head sentence should not be varied but that the non-parole period should be reduced by twelve months and made orders accordingly. This result was announced at the hearing since, having regard to the impending court vacation, it was not considered appropriate that the outcome – as to which the Court was in no doubt – should be delayed pending the preparation and delivery of reasons. The following are those reasons. 4 The offence comprising the first count in the indictment occurred on 19 May 1998 at a tavern. The applicant forced open the bottom drawer of a poker machine and repeatedly fed the coins which he had removed from its cash box through the machine until he obtained a winning credit of $1,900, which he was paid. In addition to his admissions, the applicant's fingerprints were found on the cash drawer of the machine. The second count reflects a similar offence at another hotel, committed on 12 July 1999. The applicant with his partner obtained access to the cash boxes of two poker machines and obtained a total of $2,300 that, because of the mode of payment, was divided into two offences, one of which was on the Form 1. The offence comprising the fourth count occurred on 17 February 2001 when the applicant broke into a hotel, forced open a cigarette vending machine and collected a number of cigarette packs. He had triggered an alarm and the licensee attempted to apprehend him. The applicant threatened him with a 20cm screwdriver and made good his escape. The circumstance of aggravation was that the applicant was armed with a screwdriver. Counts 5, 6 and 7 occurred during the early hours of 10 March 2000, comprising breaking and entering three clubs and stealing from them, in all, cigarettes worth $4,300 and $1,800 in cash. The 8th count comprised an offence committed on 30 November 1998 at a nursing home, the applicant being accompanied by a co-offender and knowing, of course, that it was likely that a person was within the premises. The two offenders gained entry by removing a flyscreen and forcing open a sliding window. They took the safe from the office and carried it away in the boot of a car that was stolen from the car park of the nursing home. Travelling in this car is an item on the Form 1. The 9th count comprises an offence committed on 1 July 1999 when the applicant smashed the front window of a newsagency, forced open a cigarette cabinet and stole cigarettes to the value of about $3,270. His identity was discovered because his fingerprints were located. 5 The offence which carried the heaviest sentence and in respect of which the Form 1 matters were taken into account comprised breaking and entering into a club on 22 December 2000 with an accomplice, forcing open a vending machine and stealing over three hundred packets of cigarettes. The two offenders were disturbed by the cleaner. Again, the applicant's fingerprints were identified at the scene. 6 The applicant was born in April 1979 and is thus approaching his 24th birthday. The learned sentencing Judge described the applicant's childhood and adolescent history as being "as destructive and destabilising as any that I have encountered" adding – "The prisoner's natural father apparently was himself an alcoholic and prone to violence towards the prisoner's mother. Indeed, to such an extent that it is said that he caused damage to the prisoner's sister in utero and she has been severely disabled since her birth. The prisoner's mother is also said to have been violent towards the prisoner. Which is cause and which is effect is difficult to identify with precision. The mother regarded the prisoner as being uncontrollable from an early age, age of 9 or so [sic]. She meted out to him extremely violent physical punishment. The prisoner was identified as being at risk and was removed by the Department of Community Services, placed in homes and with foster parents in what has to be seen as an unsuccessful attempt to provide him with safety and stability. He kept running away from the places in which he was positioned and, at the age of 10, began to use marijuana and later, from the age of 14, heroin, quickly graduating to using it by injection." 7 The learned sentencing Judge accepted that, since the applicant's incarceration, he has stopped taking drugs without medical assistance. Urine samples have been negative. He has undertaken counselling and "engaged enthusiastically" in a number of courses aimed at identifying the reasons for the his addiction and assisting him to remain drug free, whilst dealing with significant problems in his personal life, some of which have been described above. A pre-sentence report that was tendered below is supportive, indicating, amongst other things, that the applicant's prospects for rehabilitation are good. The learned sentencing Judge accepted, not only that the applicant pleaded guilty at the first practicable opportunity but also was sincerely contrite. His Honour stated that an overall discount in the order of 25% was given to the applicant encompassing both his contrition and the utilitarian consideration. As is obvious from the sentences, his Honour adjusted the non-parole period in view of the special circumstances in the case. 8 The link between the applicant's background and his criminal history, which is lengthy and dates from late 1995, seems obvious and the sentencing Judge's characterisation of it is by no means an exaggeration. The history makes appalling reading of which the brief summary set out above is but the tip of an iceberg. 9 It is conceded by Mr Haesler, counsel for the applicant, that the learned sentencing Judge's reasons were comprehensive and exhibited no formal error of principle. In light of the significant demonstration of rehabilitation, all the more commendable when the applicant's background is taken into consideration, a strong argument was mounted that the crucial feature of the applicant's sentence that required attention was the length of the non-parole period. In the circumstances, it was frankly conceded by Mr Haesler that any non-parole period that could appropriately be imposed in this case would exceed three years and hence the Parole Board would have the opportunity to assess, amongst other things, the propriety of releasing the applicant into the community, having regard (amongst other things) to the consideration of public safety. At the same time, there is a distinct public interest in rehabilitation, where the signs are positive, in the hope that further offences will be avoided and the offender diverted to a law-abiding life. 10 Having regard to the entire picture, including giving due weight to the seriousness of the applicant's crimes, I would have imposed a lesser non-parole period on this applicant. Of course, that is not the relevant test in considering an appeal. However, with respect to the learned sentencing Judge, I consider that his Honour did err in his consideration of the impact of the obvious contrition and remorse demonstrated by the applicant, for which, as it seems to me, his Honour gave little, if any, allowance. His Honour stated that the applicant should be "given a discount because of his early plea and indeed because of his contrition." Strictly speaking, contrition and remorse are subjective features that will usually, but by no means always, require mitigation of penalty on the ground, amongst other things that if genuine, it improves the prospect of rehabilitation. Here, where the crimes were largely motivated by the applicant's need to feed his drug addiction, this element takes on added importance. Although, as has frequently been said, drug addiction will only rarely be regarded as a mitigating circumstance, the fact that an addict has made substantial progress in actually dealing with his or her addiction will always be a material factor in crafting an appropriate sentence. Significant steps of this kind provide persuasive evidence of contrition and emphasise the importance of this subjective feature. I add that there is some difference, which may be significant in some cases (and I think that this is one of them), between the approach to addiction that is appropriate where an adult becomes addicted to illicit drugs on the one hand and where, as here, a child becomes addicted because of the environment in which they are placed or otherwise find themselves at a time before they reach maturity. This is not to lessen the importance of personal responsibility for crimes committed for the purpose of satisfying the addiction but to recognise that the approach to this matter should not be arbitrary. 11 In this case, the learned sentencing Judge gave a discount for both the utilitarian value of the plea and for the applicant's remorse and contrition, totalling 25%. Having regard to the number of offences to which the applicant pleaded guilty, in respect of a number of which his confession was the only substantial evidence against him, the utilitarian value of his plea was substantial and the discount should have been measured at the top of the generally applicable range specified in The Queen v Thomson & Houlton [2000] 49 NSWLR 383; 115 A Crim R 104, namely in the order of 25%. That being so, it seems to me that a further allowance reflecting the applicant's remorse and contrition should have been made in accordance with proper principles of sentencing. Accordingly, this Court should consider whether a "less severe [sentence] is warranted in law and should have been passed": s 6(3) Criminal Appeal Act 1912. It appears from the affidavit of the applicant tendered without objection that his rehabilitation has continued and that he is undertaking courses which will assist him to obtain employment upon his release. We agree with the learned sentencing Judge that special circumstances exist making it desirable to depart from the statutory calculation contained in s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 12 On 18 December 2002, when the orders of the Court were made, we omitted to deal with count 4 of the indictment, which required adjustment in order to give effect to the Court's conclusion as to the appropriate non-parole period. It is necessary to attend to this matter now. Accordingly, in addition to the orders previously made, the Court orders that the sentence passed in relation to count 4 is quashed and in lieu thereof is substituted a fixed term of two years six months to commence on 2 August 2002 and expire on 1 February 2005. 13 SMART AJ: I agree with Adams J. ********** Last Modified: 04/17/2003 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.