New South Wales Court of Criminal Appeal CITATION : Regina v Sebastian Victor CURT [2003] NSWCCA 236 HEARING DATE(S) : 20/08/2003 JUDGMENT DATE : 26 August 2003 JUDGMENT OF : Foster AJA at 1 DECISION : 1. Leave to appeal be granted.; 2. Appeal be dismissed. CATCHWORDS : Appeal against severity of sentence. s 5AF of the Criminal Appeal Act 1912 LEGISLATION CITED : Drug Court Act s 24 of the Crimes (Sentencing Provisions) Act 1999 R v Israil [2002] NSWCCA 255 CASES CITED : R v Fahda [1999] NSWCCA 267 R v Engert [1995] 84 A Crim R 67 PARTIES : Regina v Sebastian Victor CURT FILE NUMBER(S) : CCA 60131/03 COUNSEL : Mr H. Dhanji - Appellant Mr D. Woodburne - Respondent Douglas John Humphreys SOLICITORS : Legal Aid Commission of NSW - Appellant S.E. O'Connor - Respondent LOWER COURT Drug Court of NSW JURISDICTION : LOWER COURT 2002/0091 FILE NUMBER(S) : LOWER COURT Barnett DCJ (Drug Court) JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60131/03 FOSTER AJA 26 August 2003 REGINA v Sebastian Victor CURT Judgment 1 FOSTER AJA: This appeal is brought under s 5AF of the Criminal Appeal Act 1912, being an appeal from sentences imposed by the Drug Court of New South Wales. On 21 October 2002, the applicant was sentenced in that Court by his Honour Judge Barnett. His Honour imposed sentences in respect of 27 separate offences, to which the applicant had pleaded guilty. The effect of the sentences imposed was that the applicant received an effective sentence of three years imprisonment, with a non-parole period of two years and a parole period of one year. The sentences were to date from 8 September 2002, the date on which the applicant was arrested in respect of the last three of the offences. He had been continuously in custody from that date. 2 The offences with which his Honour dealt were set out, conveniently, in tabular form, together with the relevant sentences, in the applicant's written submissions. This table appears to be uncontroversial. I attach it as a Schedule to these reasons. The first nine offences were the subject of initial sentences imposed by Senior Judge Murell upon the applicant, under s 7(2) of the Drug Court Act ("the Act"). The applicant was accepted as a person eligible to participate in a relevant program of supervision and control pursuant to conditions accepted by him and imposed by the Court under s 7(3)(a) of the Act. The execution of these sentences was suspended, by order made under s 7(3)(b) of the Act for the duration of the applicant's program. 3 It appears that the applicant failed to comply with the conditions of his program. Barnett DCJ, in his reasons for sentence, refers, relevantly, to the applicant's continued use of heroin, in breach of a condition and the commission of offences during the currency of the program. It appears that the applicant's program had been terminated by decision of the Drug Court, on 19 September 2002, pursuant to s 11 of the Act, on the basis of its being satisfied that there was no useful purpose to be served in the applicant's further participation in the program (s10(1)(b)). It was consequent upon this termination that the applicant came before his Honour for the imposition of final sentences, pursuant to s 12 of the Act, in respect of the offences for which the initial sentences had been imposed. That section empowered the Drug Court (inter alia) to reconsider the initial sentences, set them aside, and impose instead "any sentence that it could have imposed for the offence to which the initial sentence related" (s 12(3)(c)) or make orders confirming the initial sentences (s 12(3)(d)). As appears from the Schedule, his Honour confirmed the initial sentences, except for a minor reduction in the case of the fourth sentence, and provided that each sentence should date from 8 September 2002. The suspension orders in the respect of the initial sentences were revoked pursuant to s 13 of the Act. 4 The sentences in respect of the balance of the offences were imposed by his Honour pursuant to s 8(5) of the Act. 5 The effective sentence and non-parole period were the result of the sentences of 18 months with a non-parole period of 6 months, imposed in respect of Offence 24 (drive while disqualified) which was to be served accumulatively upon the concurrent sentences of 18 months imposed in respect of Offences 10 (assault occasioning actual bodily harm) and Offences 21 (drive whilst disqualified). These latter sentences dated from 8 September 2002. The former sentence was to date from 7 March 2004, when the previous sentences expired. His Honour mentioned, in his reasons, that the longer than usual non-parole period, of one year, took into account the particular need for the applicant to be closely monitored and supervised, having regard to his drug problem and his record, when released again into the community. 6 It appears that the applicant, who was born on 20 October 1977, had never had a motor vehicle driving license although he may have had a learner's permit at some stage. He had a very extensive record of motor traffic offences, committed whilst he was a disqualified driver. At the time of the commission of Offence 24, on 8 September 2002, he was, as a result of past sentencing, effectively disqualified from driving until 17 February 2029. As a result of the sentences imposed by his Honour he is now effectively disqualified from driving for life, a result which his Honour clearly intended. 7 I have already mentioned the applicant's heroin addition and his failure to cope with it whilst on the program. It may be noted that Offences 13-27 dating from 26 July 2002 were all committed whilst he was on the program, a significant factor taken into account by his Honour in sentencing. 8 The applicant was psychologically tested at Parklea Correctional Centre on 27 December 2000. These tests established that he had a full scale IQ of only 73. This placed him in the mildly intellectually handicapped range, being at the upper end of that range. I shall return to this matter later in these reasons. 9 It is appropriate to refer briefly to the facts of the offences in respect of which the 18 month sentences were imposed. It is clear that these facts weighed heavily with his Honour in his approach to sentencing. They are summarised in the Crown's submissions as follows:- "Offence 10 – 17 July 2000 Assault occasioning actual bodily harm. The victim was walking home through a car park after visiting her 3 year old son in hospital. She heard a car pull up next to her, it was the applicant her ex-partner. The applicant was a disqualified driver. The applicant asked for money but the victim refused stating she didn't have any money. The applicant threatened the victim. As the victim walked away she heard the applicant rev the car's engine so she hid near some trees. The applicant drove his car at her but she was protected by the trees and the applicant could not get the car close enough to hit her. As the car got close to the victim the applicant opened the driver's side door hitting the victim on the back of the legs and causing her to fall. The applicant got out of the car and stood over her and continued to threaten her. He then drove off at high speed. Offence 21 – 1 September 2002 The erratic driving of the applicant caused the police to stop the vehicle. The vehicle was unregistered and uninsured and also bore deliberately altered number plates. The applicant had an amount of heroin in the vehicle, which also contained an expandable baton, which was, relevantly, a prohibited weapon. Offence 24 – 8 September 2002 The applicant was seen driving a stolen vehicle on a Sunday afternoon in Bossley Park. Police commenced a pursuit, with warning lights and sirens operating. The applicant drove at dangerous speeds through intersections, against traffic control lights and across the path of other vehicles. The applicant collided with other vehicles and drove up on to the median strip, with various vehicles having to act to avoid collision. Eventually the applicant collided with some 10-12 vehicles and was arrested when his vehicle became wedged between two cars. He admitted using heroin just before driving." 10 The bare description of this last offence does not really do justice to the horrendous facts, as they appear from the police facts sheet tendered in evidence before his Honour and referred to, in considerable detail, in his Honour's reasons. It is clear that his Honour was most concerned by this offence. Indeed, having regard to the irresponsible and reckless manner of the applicant's driving, it is extremely fortunate that no person was injured. 11 The applicant's criminal and motor traffic records are considerably more extensive than the offences with which these proceedings are concerned. Apart from driving offences, the applicant's record is "littered" as his Honour said, in his remarks, with offences of stealing motor vehicles and stealing from them after breaking into them and damaging them. Apart from the offences which were committed whilst he was on the Drug Court program, many of them were committed whilst he was on bail. In my view, his Honour was completely justified in finding, as he did, that the applicant did not care about Court orders and should be effectively barred from ever driving again. The Appeal 12 The applicant seeks to appeal on the grounds that the effective sentence imposed was too severe. He asserts that his Honour erred in two respects. 13 In the first place, it is asserted that the judge failed to take into account two periods of pre-sentence custody, being periods of 13 days and 58 days, when the applicant was remanded in custody, bail having been refused. 14 The first of these periods runs from 26 July 2002 to 7 August 2002. It appears that his Honour was appraised of this period. He does not mention it in his reasons for sentence. This period was referrable to the four offences committed on 26 July 2002, being Offences 13, 14, 15 and 16 in the Schedule. There were two offences of larceny, one of malicious damage and one of possessing car breaking implements. His Honour imposed sentences of 9 months imprisonment in respect of each, to be served concurrently, each to date from 8 September 2002. It is clear that any adjustment to these sentences, either by back-dating for 13 days or by reducing the sentences by that period would have no practical consequence. The sentences, so adjusted, would expire before the expiration of the applicant's effective non-parole period on 7 September 2004. 15 The second period of 58 days runs from 4 April 2002 to 30 may 2002. It is suggested that his Honour was not made aware of this period or, perhaps, not of its full extent. It relates to the offences committed on 4 April 2002 being Nos. 1-4 on the Table. These were matters in respect of which initial sentences had been imposed by Senior Judge Murrell. In his final sentencing in respect of these matters, it appears that Judge Barnett had before him Senior Judge Morrell's remarks on sentence in which she specifically made an allowance of two months in respect of Offence No. 4, for a period spent in pre-sentence custody. In these circumstances, I am not satisfied that an appropriate allowance for this period has not been made. Even if it had not, the making of such an allowance now would not produce any advantageous result so far as the applicant is concerned. 16 So far as the period of 13 days is concerned, it may be that the sentence imposed in respect of the relevant offences should be shortened by 13 days in order to maintain the commencing date selected by his Honour and to comply with s 24 of the Crimes (Sentencing Provisions) Act 1999. Nothing would be achieved by doing this. I consider the matter, simply, to be de minimis. 17 These conclusions, in themselves, do not take into account the submission made by counsel for the applicant that the effective sentence and non-parole period imposed by his Honour should be reduced by the total of these periods, namely 71 days, by either back dating the commencing point of the sentence or reducing it appropriately. It was submitted that the "totality" principle required that this be done. This submission was not supported by authority. It seems to me to have no basis in logic or in principle. The periods of pre-sentence custody related only to he particular offences which I have mentioned and not to the offences, the sentences for which produced the effective sentence and non-parole period. I reject this submission. 18 The other asserted error is expressed as follows:- "The sentencing judge erred in failing to reduce the weight to be given to general deterrence in the sentencing of the applicant." 19 This ground involves a consideration of the effect of the applicant's level of intellectual disability. The applicant relies upon the trial judge's remarks in his reasons for sentence, which, with immaterial omissions, reads as follows:- "[The appellant's} counsellor indicated very early in the program that he believed that [the appellant] would have difficulty in the health programmes because of his level of intelligence. This was particularly noticeable in groups. He was difficult to monitor in the community as he would indicate he understood what was required of him but his behaviour did not reveal this. ….Dr Sandra Sunjic of the South Western Sydney Area Health Service…referred to the psychological testing completed in 2000 in her report. I have had the benefit of perusing the report which was tendered in relation to today's sentence. That report indicates that [the appellant] functions at a mildly intellectual handicapped range and…has trouble understanding instructions given to him be they written or verbal. Dr Sunjic says to compound this [the appellant] often is unable to find the right words to express himself. His low level of functioning has meant progress has been slow and will continue to be so, but does not preclude his ability to participate in the drug court program. As she was in fact quite supportive of him continuing but the Court had to look to community safety and his program was terminated after his last spree of offending on 8 September." 20 It is the applicant's submission that this passage demonstrates that, while the trial judge gave consideration to the applicant's level of disability in relation to his participation in the Drug Court program, he, nevertheless, failed to consider it in relation to the element of deterrence, when sentencing the applicant. 21 Reliance was placed upon the discussion in Regina v Israil [2002] NSWCCA 255) relating to the impact upon sentencing of considerations as to the mental condition of the person being sentenced. Spigelman CJ said (other members of the Court agreeing) at par 23ff: "23 To the extent that mental illness explains the offence – as her Honour found to be the position in the present case – then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse of law." 22 Reference was also made to the impact of mental illness on the element of personal deterrence. Spigelman CJ pointed out that, in particular cases, this element may be entitled to less weight than it otherwise would have in the sentencing exercise. His Honour referred to a statement made in the Victorian Court of Appeal in R v Tsiaras: "..specific deterrence may be more difficult to achieve and is often not worth pursuing as such". 23 Based upon these statements and others to like effect, the applicant submitted that the trial judge erred in failing properly to take into account the low level of deterrence of the applicant, resulting from any sentence imposed upon him. 24 I am not satisfied that his Honour failed to give due weight to this consideration. This was not a case where the applicant's mental and intellectual disabilities were such as to prevent him from being personally deterred by any sentence imposed upon him from engaging in future criminal conduct. As is pointed out in the Crown's submissions, deterrence was "worth pursuing" in the applicant's case. The psychological report, in evidence before his Honour, indicated that the applicant was aware that he must be responsible for his behaviour, citing the applicant's words:- "I know I did the wrong thing. Because I was on drugs I wasn't thinking the way I should have been thinking." Also the applicant said:- "I don't want to end up in this place again. I want to get on with my life and stay away from drugs." 25 The personal deterrent effect of a custodial sentence upon the applicant was, in my view, amply demonstrated to his Honour and properly taken account of in the sentencing process. 26 So far as general deterrence is concerned, the submission made on behalf of the applicant is that, having regard to the applicant's intellectual impairment, this case was not a proper vehicle for imposing a sentence of general deterrent effect. However, I am satisfied that this case should not be viewed as one of significant mental illness or disability, such as concerned the Court in Israil. His Honour was quite entitled to view the applicant's major problem as being one of heroin dependence. He was obviously admitted into the Drug Court program on the basis that he had sufficient intellect to establish control over his addiction, when provided with supervision and assistance. Nevertheless, as discussed in detail by his Honour, he had failed to avail himself of the opportunity for rehabilitation that the program offered. 27 Moreover, his Honour was faced with the usual need to conduct a balancing exercise in this area of judicial appraisal. I have been greatly assisted by the comprehensive analysis made of the authorities in this area by Simpson J in R v Fahda [1999] NSW CCA 267. Her Honour, in her careful judgment, has collected and set out many authoritative statements. I am satisfied, from my consideration of this material, that proper regard must be paid to the level of intellectual impairment which is involved in the particular case. Severe intellectual impairment may, obviously, produce the result that the sentencing of a person so afflicted could have little, if any, general deterrent effect. However, this is not such a case. Here the relevant level of intellectual impairment has been described as "mild". It cannot be suggested that the applicant is relevantly incapable of perceiving the wrongfulness of his actions and exercising an appropriate degree of self-control. 28 In my view, the passage that her Honour cites from the judgment of Gleeson CJ in R v Engert [1995] 84 A Crim R 67 is most germane to the present case. His Honour said (at p 68):- "A moment's consideration will show that the interplay of a consideration relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction relating to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No.2) [(1988) 164 CLR 465]." 29 It is plain that the trial judge was, when faced with the applicant's appalling record of traffic and criminal convictions, which covered far more than the 27 offences which he was considering, was firmly of the view that the public needed protection from the applicant, especially having regard to his then attitude to the leniency which had previously been extended to him. His emphasis, in the necessary balancing exercise, on the need to protect the community, was in my view quite appropriate in the present case. 30 I am satisfied that no appellable error has been demonstrated and that, indeed, the sentence imposed by his Honour was, in the circumstances, a reasonably lenient one. 31 Accordingly, I make the following orders:- 1. Leave to appeal be granted. 2. Appeal be dismissed. SCHEDULE Offence Date Initial sentence Final sentence (s8 or s12) 1 Driver display unauthorized number plates 4/4/02 $110 $100 2 Drive in a manner dangerous 4/4/02 6 months imp. 6 mths tdf 8/9/02 Disqualified 2 yrs 3 Drive while disqualified 4/4/02 s11 remand to 28/11/02 This sentence, while imposed with other 'initial sentences' was imposed pursuant to s8. The bond was conditioned on compliance with the Drug Court Program 9 mths tdf 8/9/02, Disqualified 2 yrs, cumualtive 4 Take and drive conveyance 4/4/02 10 months imp. 9 mths imp. tdf 8/9/02 5 Drive while disqualified 30/5/01 4 mths, imp. 4 mths tdf 8/9/02 Disqualified 2 yrs 6 Larceny 19/9/01 6 mths imp 6 mths tdf 8/9/02 7 Larceny 19/9/01 6 mths imp 6 mths tdf 8/9/02 8 Possess carbreaking implements 19/9/01 8 mths imp. 8 mths tdf 8/9/02 9 Drive while disqualified 19/9/01 8 mths, imp. 8 mths tdf 8/9/02 Disqualified 2 yrs 10 Assault occasioning actual bodily harm Sentence was imposed in relation to this and matters 11 and 12 after a s9 bond originally imposed was revoked. 17/7/00 18 mths imp. tdf 8/9/02 11 Possess carbreaking implements 19/8/00 9 mths imp. tdf 8/9/02 12 Enter vehicle without consent 21/7/00 $250 13 Larceny 26/7/02 9 mths imp. tdf 8/9/02 14 Larceny 26/7/02 9 mths imp. tdf 8/9/02 15 Malicious damage 26/7/02 9 mths imp. tdf 8/9/02 16 Possess carbreaking implements 26/7/02 9 mths imp. tdf 8/9/02 17 Enter vehicle without consent 26/7/02 $250 18 Use unregistered vehicle 1/9/02 $250 19 Possess prohibited drug 1/9/02 Rising of the Court 20 Display misleading number plate 1/9/02 $250 21 Drive while disqualified 1/9/02 18 mths tdf 8/9/02 22 Use uninsured motor vehicle 1/9/02 $250 23 Possess prohibited weapon 1/9/02 9 mths tdf 8/9/02 24 Drive while disqualified 8/9/02 18 mths tdf 7/3/04, NPP 6 months 25 Drive under the influence of drug 8/9/02 12 mths tdf 8/9/02 26 Drive in a manner dangerous 8/9/02 12 mths tdf 8/9/02, disqualified for 5 years on matters 24-26 tdf 21/10/02 27 Take and drive conveyance 8/9/02 9 mths tdf 8/9/02 **************** Last Modified: 01/14/2009 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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