REGINA v. REILLY [2003] NSWCCA 20

New South Wales Court of Criminal Appeal

CITATION : REGINA v. REILLY [2003] NSWCCA 20 HEARING DATE(S) : Monday 17 February 2003 JUDGMENT DATE : 17 February 2003

JUDGMENT OF : James J at 28; Greg James J at 1 DECISION : Applicaiton for leave to appeal granted; appeal dismissed.

CATCHWORDS : Criminal law - appeal - sentence - effect of complex of sentences - relevant offence in breach of bonds activating suspended sentences - no double punishment effect - no error. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : N/A PARTIES : REGINA v. REILLY, Adam James FILE NUMBER(S) : CCA No. 60858 of 2001 COUNSEL : Crown: D.M. Howard App: J.J. Klarica SOLICITORS : Crown: C.E. O'Connor App: Michael Britten & Co.

LOWER COURT District Court JURISDICTION : LOWER COURT 01/61/0132 FILE NUMBER(S) : LOWER COURT Nield, DCJ. JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL No. 60858 of 2001

JAMES, J. GREG JAMES, J.

MONDAY 17 FEBRUARY 2003 REGINA v. ADAM JAMES REILLY Judgment

1 GREG JAMES, J: This is an application for leave to appeal against sentences imposed in the District Court at Bathurst on 15 November 2001 on the applicant Adam James Reilly. The applicant came before the District Court on that occasion in respect of four offences. The first, breaking entering and stealing committed on 1 January 2000. The second, possessing goods reasonably suspected of having been stolen committed on 29 February 2000. The third, driving a motor vehicle whilst disqualified from holding or obtaining a driver's licence committed on 18 March 2000. The fourth, breaking and entering and stealing committed 14 March 2001. 2 In his remarks on sentence, the learned District Court Judge set out the details relating to those offences. In relation to the first offence of break and enter, that matter was before the court in that the applicant had been dealt with by a magistrate in the Local Court and sentenced to imprisonment for two years with a non parole period of six months and had appealed that sentence to the District Court. 3 On that appeal a District Court judge had dismissed the appeal, confirmed the conviction and sentence but suspended the sentence for two years conditionally upon the applicant entering into a bond to be of good behaviour for those two years. The applicant had breached that bond and that was what caused the matter to come before the District Court on 15 November 2001. The offence in that case involved stealing property from a house. 4 In relation to the offence of possessing goods reasonably suspected of having been stolen the applicant had been sentenced by a magistrate in the Local Court at Orange to imprisonment for a fixed period of six months. He had again appealed to the District Court. His appeal was dismissed, a conviction was confirmed but the sentence was set aside and in lieu thereof the court deferred passing sentence conditionally upon his entering into a bond to be of good behaviour for two years. He had breached the bond. The position is similar in this regard to that which prevailed in respect of the previous conviction to which I have referred. 5 The offence of driving a motor vehicle whilst disqualified came before a magistrate in the Local Court at Orange and the applicant had received a sentence of imprisonment for a fixed period of six months and a disqualification. Again he appealed and again sentence was deferred although the appeal dismissed and the conviction confirmed and again a two year bond was imposed. Again there was a breach and the position is similar to that on the offences I have earlier referred to. 6 There was in addition an offence of having custody of a knife in respect of which he had been sentenced by a magistrate in the Local Court on 14 September 2001 and was fined $200 and ordered to pay court costs. He had not appealed against that sentence. That offence constituted a breach of the bonds entered into by him on 4 December in respect of those offences to which I have already referred. 7 When in prison in relation to an offence of demanding $200 cash with menaces intending to steal the money, said to be committed on 14 April 2001, the applicant was charged with an offence of breaking into and entering the home of a Mr. Babicci at Orange on 14 March 2001 and stealing his property. When charged with that offence the applicant was serving a sentence for a period of two years with a non parole period of six months imposed upon him in the Local Court at Orange for that offence of demanding money with menaces. He had not appealed the sentence imposed by that magistrate. That offence constituted a breach of the bonds entered into on 4 December 2000 also. 8 In the Local Court, the offender had initially pleaded guilty to the offence of breaking into and entering the home of Mr. Babicci. That offence is punishable by a maximum of 14 years when dealt with, as here, in the District Court. That offence also constituted a breach of the bonds. 9 In consequence of all that complex of matters it was necessary for the trial judge to examine the appropriate sentence to be imposed for that break and enter offence, albeit it was necessary for him also to have regard to the sentence imposed for the first break and enter offence and vary the apportionment of that sentence having regard to the necessity to impose a proper non parole and parole period. 10 His Honour said little concerning the facts of the offence. Shortly what the applicant had done had been to enter a home by forcing open the window lock of the bedroom and removing a lap top computer, luggage and sporting equipment, leaving however his fingerprints on the aluminium surface of a fly screen. When arrested he declined to be interviewed and in due course came forward to be dealt with on his plea before the magistrate for the matter. 11 The learned trial judge had regard when determining the appropriate sentence to the specific criteria set out in his judgment, and in particular the criteria set forth in s.21A of the Crimes (Sentencing Procedure) Act 1999. Relevantly to the grounds of appeal he said in relation to rehabilitation:- "It is difficult to see that the offender is motivated towards rehabilitation. He was given, what his Honour Judge Gibson described as, a last chance to turn over a new page in his book of life and yet he rejected that chance. I doubt that he [is] motivated toward rehabilitation. I suspect that as history has the habit of repeating itself, his criminal history will repeat itself on his being released from prison." 12 His Honour referred to the applicant's early plea and an entitlement to the applicant receiving a maximum discount of 25% on the basis of it having "the greatest utilitarian value". Further his Honour said in relation to the offender's contrition:- "I accept that, as a principle, a guilty plea carries with it an indication of an offender's contrition. I really doubt, however, that the offender is contrite for the breaking, entering and stealing offence committed by him on 14 March 2001 because he, being a drug addict, and lacking the wherewithal with which to obtain his drug of choice, would be unlikely to give a moment's thought to whoever it was or from wherever it was that he obtained property to get money in order to obtain his drug of choice." 13 The sentences imposed by his Honour resulted in the applicant having to serve an effective sentence for this batch of crimes of some five years with a non parole period of two and a half years. The instant sentence on which he appeals was a sentence which was divided into a non parole period and a parole period as follows. A non parole period of one year and six months imprisonment to commence on 14 April 2002 and to expire on 14 October 2003. A parole period of two years and six months to commence on 15 October 2003 and to expire on 14 April 2006, that is to say a sentence of four years with a non parole period of 18 months if considered discretely. 14 The submissions made in respect of the sentence imposed require one to have regard to the complex of sentences to which I have referred and in particular to have that regard when considering the submission that the sentence, when considered in totality with the other sentences, was manifestly excessive. 15 His Honour had said, when passing sentence, that, as the offender was liable to the sentences that had been suspended arising from his breach of the bond and the sentence that his Honour proposed to pass, and that his Honour proposed to accumulate the sentences, the fact of accumulation was a special circumstance which permitted his varying the otherwise statutory apportionment of the non parole and parole period. It was this matter that gave rise to the proportions of non parole to non parole period to which I have referred. 16 It is submitted that his Honour erred in failing to find or consider properly the applicant's contrition as a mitigating factor. It is submitted further that insofar as his Honour did find contrition that insufficient weight was given to it. It is contended that the sentencing judge erred in "taking into account that there was no contrition at the time of the offence and not taking into account the contrition displayed at the time of sentencing". 17 The contrition displayed at the time of sentencing which is presumably also the matter to which reference is made in the other submissions contending that there was an absence of contrition or that such contrition was not properly considered is said to be evidenced in the hand written letter from the prisoner's mother and the evidence of the applicant given at the sentencing hearing. 18 On a fair reading of the applicant's evidence, he said he had been involved substantially in taking prohibited drugs when a youth, had received the benefit of the bonds and the suspended sentence to which I had referred and he said, when asked, "Well why didn't you remain on good behaviour?", "I just wasn't myself when I was using the drugs and I was doing stupid things, things I regret doing now". He had said that it did not make him feel good to be in custody for so long and that he intended attending drug and alcohol counselling to do whatever he could not to go back on the drugs, that he had a motivation for committing the offences to get money for drugs and that these were isolated offences committed by him for that purpose. He expressed the view that he thought he was able to stop using drugs. 19 Before us it has been submitted on his behalf that it can be assumed that whilst he was in custody he was drug free and that we should assume that due to the passage of time he has been drug free longer now than he had been before the trial judge. For myself I am not content to make any such assumption as critically important to the outcome of this appeal, particularly not in the absence of other evidence. 20 The finding of the presence or absence and the degree of contrition is a matter of fact for a trial judge. I am unable to conclude that his Honour erred in his treatment of the presence, absence or weight to be afforded to contrition when having regard to what his Honour said in his remarks on sentence and the material that was before him on that issue. 21 In particular the assumption that there is a principle that requires the court from such as was said by the applicant to conclude that there was contrition available at that time is one that I am not prepared to make. 22 The further submission is made that the sentencing judge failed to properly consider the issue of rehabilitation by failing to place appropriate weight on the subjective factors. The sentencing judge in that regard made the remark to which I have referred earlier concluding that it was difficult to see that the offender was motivated toward rehabilitation. 23 Given that it is particularly important in sentencing young persons to have regard to their prospects for rehabilitation and that the applicant has apparently, whilst in custody, done many courses, nonetheless it was entirely open to the trial judge to reach the conclusion that he did, particularly in the context of the numerous instances of criminality which had brought the offender before the trial judge on the instant occasion and particularly having regard to the applicant's extensive record. 24 The remaining submission concerned the sentence being manifestly excessive in the circumstances taking into account all factors relevant at the time of sentencing. A particular point was made in support of that contention that the effect of the applicant's breach of the bonds which resulted in the suspended sentences being reactivated was that the applicant was punished not only for the original crimes by having to serve the sentences which were suspended but also for the crimes which constituted the breaches of the recognisances in each case and that those penalties were effectively made cumulative or at least to some considerable extent. 25 For my part I see no problem there. That is what happens when the leniency that was extended by the original sentencing district court judge, Gibson, J., is abused. The mechanism of reactivation of the suspended sentence does not require that a lesser sentence be passed upon a person who, by committing a crime, breaches an entitlement to conditional liberty as would be the case if the point were upheld. True it is that the totality principle still prevails to ensure that the sentence overall does not attain an artificial substantial gravity. But that is a different thing to suggesting that the consequences of the breach should not be visited upon the applicant in circumstances such as these. 26 When I have regard to the totality of criminality and further to the applicant's record, when I have regard to the matters that set the context before the learned trial judge, I cannot conclude that the sentence is excessive. 27 In the circumstances I would propose, since the matter has been fully argued, that the application for leave to appeal be granted but that the appeal be dismissed. 28 JAMES J: I agree and the orders of the court will be as proposed by Greg James, J. **********