Reported Decision : (2002) 129 A Crim R 381 New South Wales Court of Criminal Appeal CITATION : R v Marschall [2002] NSWCCA 197 FILE NUMBER(S) : CCA 60701/02 HEARING DATE(S) : 21 May 2002 JUDGMENT DATE : 21 May 2002 PARTIES : Regina v Lee Anthony Marschall JUDGMENT OF : Smart AJ at 1 LOWER COURT JURISDICTION : Drug Court LOWER COURT FILE NUMBER(S) : 1999/0225 LOWER COURT JUDICIAL Murrell DCJ OFFICER : COUNSEL : (A] P M Winch (C) G I O Rowling SOLICITORS : (A) D J Humphreys (C) S E O'Connor CATCHWORDS : Sentencing - approach to time spent in full time residential centre when offender being sentenced on termination of Drug Court Program LEGISLATION CITED : Drug Court Act 1998 Crimes (Sentencing Procedure) Act 1999 R v Eastaway CCA unrep. 19 May 1992 R v Cartwright (1989) 17 NSWLR 243 at 258 R v M E Douglas unrep. CCA 4 March 1997 R v Aiken [2001] NSWCCA 40 CASES CITED: R v Campbell (1999) NSWCCA 76 R v Thompson {2002] NSWCCA 362 R v B J Smith [1999] NSWCCA 45 R v Everingham unrep. CCA 4 July 1994 R v Baker [1999] NSWCCA 150 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60701/01 SMART AJ Tuesday 21 May 2002 REGINA v LEE ANTHONY MARSCHALL JUDGMENT 1. Lee Anthony Marschall appeals against the asserted severity of final sentences of imprisonment imposed upon him in the Drug Court on 2 October 2001 consequent upon s 12 of the Drug Court Act 1998. 2. On each of Counts 1 and 7 (possess car breaking implements), Count 9 (possess housebreaking implements), Count 10 (steal property from dwelling) and Count 12 (take and drive conveyance without consent of owner) he was sentenced to imprisonment for a fixed term of seven months three weeks from 25 August 2001 to 14 April 2002. 3. On each of Counts 2 and 8 (goods in custody), Counts 3, 5 and 11 (larceny), Counts 4 and 6 (maliciously destroy property) he was sentenced to imprisonment for a fixed term of three months from 25 August 2001 4. On Count 13 (take and drive conveyance) he was sentenced to imprisonment for eight months from 15 April 2002 with a non-parole period of three months from that day to 14 July 2002. 5. On each of Count 14 (drive in a manner dangerous) and Count 15 (drive whilst disqualified) he was sentenced to imprisonment for a fixed term of three months from 15 April 2002 to 14 July 2002. 6. The appellant was initially sentenced on 9 August 1999 pursuant to s 7(2) of the Drug Court Act in respect of offences committed on 17 May 1999, 19 May 1999, 20 June 1999 and 2 July 1999. The judge has set out the facts in relation to such offences on pp 1 and 2 of her remarks on 9 August 1999. At that stage the appellant was to go to Westmount at Katoomba on a drug rehabilitation program. 7. On each of Count 1 (possess car breaking implements), Count 9 (possess housebreaking implements), Count 10 (steal from dwelling) and Count 12 (take and drive conveyance), after allowing for two weeks spent in custody by the appellant, he was sentenced to imprisonment for ten months two weeks; all sentences to be served concurrently. The sentences were suspended during the appellant's program. The appellant remained at Westmount for a short period (about twenty days) in 1999. 8. On 21 June 2000 the appellant appeared before the judge on charges of take and drive conveyance without consent of owner (Count 13), drive in a manner dangerous (Count 14) and drive whilst disqualified (Count 15), the offences occurring on 9 January 2000. The facts are set out on pp 1 and 2 of the judge's remarks of 21 June 2000. There was a high speed police chase on 9 January 2000 in which the appellant lost control of his vehicle. While leaving his vehicle the appellant was hit by the police vehicle and sustained compound fractures to both legs. He spent ten weeks in hospital having metal implants placed in his legs and a skin graft. He remained disabled. 9. The appellant's program was considered for termination in early May 2000 but he was permitted to go to Odyssey House. The judge said that for the first time while on the Drug Court program, the appellant seemed to be going consistently well despite his difficulty in terms of pain management. As at 21 June 2000 the appellant had been at Odyssey House for nine weeks; that is, from 3 May 2000. 10. The judge took into account the three weeks that the appellant had spent in custody. The appellant was sentenced to eight months for taking and driving a motor vehicle and lesser concurrent sentences for the driving offences. However, all three sentences were cumulative on the earlier sentences, creating a total sentence of eighteen months two weeks. The sentences were suspended so he could continue with his drug program. 11. The appellant stayed at Odyssey House for seven and a half months and did well during that period. When the appellant left Odyssey House, with approval, on 19 December 2000, it was thought that he was quite stable. However, from about January 2001 there were difficulties and these became much worse from about May 2001. He was unable to implement what he had been taught. 12. His breaches of conditions were such that on 13 June 2001 the Court expressed the view that it was at the end of its tether. The breaches, including drug use, continued and worsened. He was arrested on 25 August 2001 and charged with robbery with wounding. Bail was refused. On 27 August 2001 the papers were marked "self terminates program". 13. The appellant was born on 13 January 1971. His parents separated when he was aged between four and eight years. The parents lived together again for a period of two years but separated when the appellant was about ten years old. The father was an alcoholic and there was violence in the home. The appellant and his mother moved around New South Wales to avoid his father. 14. The appellant undertook a butcher's apprenticeship when he was aged about sixteen but this terminated when he spent six months in an institution in 1987/1988. On 6 December 1991 he was sentenced at Penrith District Court for break, enter and steal and assault occasioning actual bodily harm. 15. In 1993 he served six months for driving whilst disqualified. In 1994 the appellant began living with his fiancée and this continued for some four years until the couple split in 1998. The appellant was in employment throughout this period. The appellant was much affected by the split. He lost his job in November 1998. After that there were many offences. They were the subject of proceedings before the judge. 16. The judge noted that the appellant had spent a total of two months three weeks in custody during the currency of his program prior to 25 August 2001 and had been in custody from 25 August 2001 to 2 October 2001. The judge rejected the submission that some reduction should be made in the appellant's sentence because of the seven and a half months he spent in Odyssey House. She contrasted this case with R v Eastaway, CCA, unreported, 19 May 1992, where the rehabilitation of the person was a "spectacular success". The judge's approach was as follows: "In one sense participation in a Drug Court Program can be seen as a gamble. Offenders who are successful in their rehabilitation ... can look forward to receiving a good behaviour bond ... Offenders who fail to rehabilitate have only deferred the inevitable, in terms of a period in custody. That, unfortunately, is this offender's situation." 17. The judge deducted from the initial sentence of ten months two weeks the period of two months three weeks spent in custody during the program and arrived at a final sentence of seven months three weeks and directed it commence on 25 August 2001 and expire on 14 April 2002. She confirmed the sentences of three months, directing that they run from 25 August 2001. She also confirmed the sentences imposed on 21 January 2000, that they were cumulative and were to date from 15 April 2002 with the eight months sentence expiring on 14 December 2002 with a non-parole period of three months. She found that the broken nature of the period in custody was a special circumstance. The judge directed the release of the appellant on parole on 14 July 2002 and that the parole order be subject to the following additional conditions: 1. The appellant accept the supervision of the Probation and Parole Service for the whole of the parole period. 2. The appellant report to the Service within two working days of release. 18. The final effective sentence imposed was fifteen months and three weeks from 25 August 2001. When the fixed terms and the non-parole period are combined, the appellant was required to serve ten months three weeks in prison. 19. The appellant contended that the judge had erred in not giving him any credit for the time he had spent in Odyssey House in quasi custody. He relied on R v Cartwright (1989) 17 NSWLR 243 at 258; R v Eastaway (supra); R v M E Douglas, unreported, NSWCCA 4 March 1997. 20. In Cartwright the applicant was granted bail on the basis that he daily attended on the Australian Federal Police, obeyed their reasonable directions and accepted their supervision. This was so he could give further assistance to the authorities. He had to reside in Canberra and was unable to return to his home in Sydney. That was regarded as quasi custody. It lasted for eight months. The Court reduced the minimum term by six months on that account. 21. In Eastaway, Hunt CJ at CL (Gleeson CJ and Mathews J agreeing) said that it was appropriate that the sentencing judge allowed a deduction of fifty per cent for the time spent by Eastaway in the Odyssey House program. That was a case where the rehabilitation had been extremely successful. Eastaway does establish that the credit to be given for quasi custody has to be considered in the light of all the circumstances. It is not to be considered in isolation. 22. In Douglas, Gleeson CJ, after referring to Eastaway, said at pp 4 to 5: "It suffices for present purposes to say that this Court has, on a number of occasions, recognised the regime at Odyssey House, which is ultimately directed at treatment and rehabilitation in the case of drug users, as being of a quasi custodial nature. Indeed, on a number of occasions when considering credit that an offender ought to be given for pre-sentence custody, or a regime in the nature of pre-sentence custody, the Court has treated the time spent at Odyssey House as warranting credit, if I may use that expression, in the order of approximately 50 percent of the credit that would be given for pre-sentence custody." 23. The appellant referred to Aiken [2001] NSWCCA 40 where it was held that credit should be given on account of time spent in a residential rehabilitation program. The offender had not completed his rehabilitation. The credit given was not linked to successful rehabilitation. Other cases in which a discount of the kind sought has been given are Campbell (1999) NSWCCA 76 and Thompson [2002) NSWCCA 362. See also Brendon James Smith [1999] NSWCCA 45. 24. The Crown relied on Everingham, unreported, NSWCCA 4 July 1994, and Baker [1999] NSWCCA 150 where the decision of the sentencing judge not to reduce the applicant's minimum term because of some months spent in a residential rehabilitation program was upheld. The Crown submitted that it was an aggravating feature or at least a counterbalancing feature that an offender committed further offences while on a Drug Court Program. There was, it was submitted, an additional element of general deterrence that needs to be considered where there is further offending during a Drug Court Program. The appellant is being given the opportunity to rehabilitate himself so as to receive a much more lenient sentence. 25. Some caution is required. Endeavouring to cease using drugs is difficult. The road to be travelled is long and hard. Stumbles in the form of breaches of conditions and further offences occur. Steps forward are often accompanied by steps back. A doctrinaire approach is not helpful. The Crown pointed out that persons who are eligible to enter into the Drug Court Program are, amongst other things, persons who would otherwise be highly likely to have imposed upon them a sentence of full-time imprisonment: s 5(1)(b) Drug Court Act. To have the imposition of such a sentence deferred whilst the person is afforded the opportunity of doing something which, if successful, may well and usually does bring about the result that the sentence will not be imposed at all, or result in a bond, or a lesser non-parole period, is a considerable benefit not generally available. 26. The Crown further submitted that offenders not afforded this opportunity could be forgiven for feeling aggrieved that a Drug Court Program participant is extended the opportunity to do something that will substantially reduce the sentence the participant deserves, whereas other offenders are compelled to commence service of their sentences immediately, without any opportunity to have it reduced. 27. I interpolate that the changes made by s 11 of the Crimes (Sentencing Procedure) Act 1999 lessen the force of these points. 28. The Crown contended that the considerations upon which it relied may well act to counterbalance, completely or at least to some extent, the credit that an offender may claim for periods spent in residential rehabilitation centres pursuant to Drug Court Programs. The Crown submitted that in the end it was a matter of discretion whether to take into account such a matter by reducing the offender's sentence and, if so, by how much. 29. I respectfully disagree with the view of the judge to the extent that she suggests that if the treatment in the residential program is successful, the period spent in the residential centre may be taken into account and that if the treatment does not produce a successful result, it may not be taken into account. Lengthy periods may be spent in a residential centre; for example, twelve to twenty-four months. The curtailment of liberty and the exacting nature of some of these fully residential courses is well-known, with the participants being unable to leave the centres except with consent and in limited circumstances without jeopardising their ability to stay there and receive treatment. Their monitoring can be quite intense. It has never been suggested that a participant should be given full credit for the time spent in such a centre. 30. Notwithstanding the opportunity that a participant is given, the fact remains that he or she has been in quasi custody. If the participant has only spent two or three months at the residential centre, it may well be thought that such a person has not applied himself or herself to the program sufficiently to warrant any credit being given. On the other hand, when a person has stayed in such a centre for six months or more and applied himself or herself to drug rehabilitation but in the end has not succeeded, then some credit should usually be given for the time spent in quasi custody in the residential centre. Whether any credit should be given and the amount of any credit will depend on all the circumstances, including that the treatment has not yielded a successful result. Otherwise, if a participant who does not succeed has spent, say, nine months in a centre in quasi custody and then serves his full sentence, he will in fact have spent longer in a custodial situation than if he had just served his sentence. Of course, no mathematical exercise should be undertaken. One relevant factor will be the leniency or severity of the sentence imposed. Where a sentence is at the lower end of the permissible range, it may be wrong to give any credit as the resulting sentence would not adequately reflect the criminality involved. 31. The Crown submitted that having regard to the persistent offending of the appellant with the offences of 19 May, 20 June and 2 July being committed while on bail for the offences of 17 May 1999 and the offences of 9 January 2000 being committed whilst on a Drug Court Program, it could not be said that the overall sentences imposed were beyond the range of a sound sentencing discretion. 32. I would go further. I would describe the sentences overall as lenient for the many offences. This militates against any credit or any substantial credit for the period spent in quasi custody. I would make no allowance for the period spent in Westmount. I acknowledge that some of the seven and a half months spent in quasi custody at Odyssey House must have been difficult as the appellant tried to cope with the pain and discomfort of his injuries without taking drugs. Odyssey House thought he had reached a stable stage when he left on 19 December 2000. 33. I think that the sentencing discretion of the judge miscarried. She refused to give any credit for the time spent in Odyssey House because it did not produce a successful result. While that is one matter to take into account, it is not the only matter. For the judge it seemed to be the touchstone. 34. There were many offences. All these sentences imposed by the judge were lenient and fall at the bottom of the range. The appellant spent seven and a half months in quasi custody. Offences were committed while the applicant was on bail on three occasions (19 May, 20 June and 2 July 1999) and while he was on the Drug Court Program. There were many breaches of the conditions and the taking of drugs. Sanctions were imposed. From January 2001 until 27 August 2001 the appellant undid much of the good he had earlier done, albeit that he was subjected to sanctions. The matters mentioned counterbalance any credit that might otherwise be given. 35. In all of the circumstances, I am persuaded that the applicant should be given no credit for the seven and a half months spent in Odyssey House. Lesser sentences are not warranted in law. 36. The appeal is dismissed. ********** 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.