New South Wales Court of Criminal Appeal CITATION : REGINA v. THOMAS [2003] NSWCCA 165 HEARING DATE(S) : Friday 20 June 2003 JUDGMENT DATE : 20 June 2003 JUDGMENT OF : Hodgson JA at 27; Simpson J at 28; Greg James J at 1 DECISION : Appeal dismissed CATCHWORDS : Criminal law - sentence - Crown appeal - cumulation of sentence aggravating circumstance of offence committed on bail - discretion to dismiss appeal notwithstanding sentencing error. Criminal Appeal Act 1912 LEGISLATION CITED : Crimes Act 1990 Crimes (Sentencing Procedure) Act 1999 Moffitt (1990) 20 NSWLR 114 WHS (CCA, unreported 27 March 1995) CASES CITED : Hitchcock (CCA, unreported 13 July 1998) Osenkowski (1982) SASR 212 Holder (1983) 3 NSWLR 245 PARTIES : REGINA v. THOMAS, Darren FILE NUMBER(S) : CCA No. 60080 of 2003 COUNSEL : Crown: D.M.L. Woodburne Resp: M. Austin SOLICITORS : Crown: S.E. O'Connor Resp: Many Rivers Aboriginal Legal Service LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0348; 02/31/0347 FILE NUMBER(S) : LOWER COURT Williams, DCJ. JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL No. 60080 of 2003 HODGSON, JA. SIMPSON, J. GREG JAMES, J. FRIDAY 20 JUNE 2003 REGINA v. DARREN MARK THOMAS Judgment 1 GREG JAMES, J: This is an appeal under s.5D of the Criminal Appeal Act 1912 by the Director of Public Prosecutions against the inadequacy of sentences imposed by Williams, DCJ. in the District Court on the respondent/offender, Darren Mark Thomas. The offender came forward for sentence with an extensive prior record both in the Children's Court and as an adult. He was dealt with in respect of two charges. The first comprised an offence of steal a motor vehicle, an offence under s.154AA of the Crimes Act 1900, an offence punishable by imprisonment for a maximum of 10 years on indictment. The second charge had been proceeded with under s.51A of the Justices Act 1902. The offender had pleaded guilty before a Magistrate to an offence of receiving property stolen outside the State. That is an offence under s.189A(i) of the Crimes Act 1900 for which a maximum penalty of 10 years imprisonment is provided. 2 In relation to that second charge there was a Form 1. The offences that were on the Form 1 and were taken into account were the offences of use of an unregistered vehicle, use an uninsured vehicle, drive a vehicle displaying misleading number plates and drive a vehicle never having been licensed. Those offences were each punishable only by fines. Those offences related in particular to the use of an Econovan in circumstances surrounding the respondent committing the second charged offence. That offence was committed by his having in his property, a Mack Truck that had been stolen in Queensland and from which certain parts were removed by the respondent and others in the respondent's premises. 3 The respondent had pleaded guilty to the first charged offence on indictment prior to coming before his Honour for sentence. It was accepted in respect of both matters that the respondent had pleaded guilty appropriately early for that matter to be found, as the trial judge did, in his favour. 4 Extensive written submissions were filed on behalf of the Director and in response by the respondent. The facts which provided the context to the matters to be considered in the submissions appear in the remarks on sentence of the sentencing judge. His Honour said- "The facts of the steal motor vehicle which occurred on the, in point of time earlier to the receiving matter, are that on 19 September 2001, he cadged a lift from this area to Sydney from a motorist at Kariong Service Station and then when the vehicle reached the suburb of Killara, he got the victim to get out of the car and then he promptly took over the running of the car and drove off with it, returning to Kariong. Between the time that he obtained the lift at the Kariong Service Station, he had got the victim to drive him to his home so that the victim was aware of where he was living and in fact called around there the following day, and regained possession of his car." 5 Similarly the remarks of the trial judge on sentence include:- "The receiving matters relate to 22 July last year, when it appears that a Mack truck had been observed outside premises at Somersby where he was living. A search warrant was executed on those premises and a fairly large amount of material from this ruck was found within the premises. He was subsequently arrested and in regard to both matters, at record of interview, he made full admissions. The truck apparently had been stolen from Queensland. The truck and the various items taken from it were recovered. The driving offences that I refer to on the Form 1, relate to driving that occurred on that day." 6 The trial judge noted that the respondent was a young Aboriginal man aged 27 and that he had come forward for sentence when currently serving a sentence of 12 months with a nine months non-parole period. That sentence had been imposed upon him some considerable time earlier in the Gosford Local Court. He had appealed from the magistrate's imposition of that sentence to the District Court where the sentence had been confirmed at a time shortly prior to the respondent coming forward for sentence before Judge Williams. 7 The offences for which he had been dealt with before the magistrate included larceny of a motor vehicle, take and drive a conveyance and some drug matters. The sentence for those offences was dated from 16 July 2002. The non-parole period was due to expire on 15 April 2003. 8 These matters were before his Honour Judge Williams for sentence on 12 February 2003. His Honour noted that in respect of the stealing matter the respondent had been in custody for one month solely in respect of that matter. His Honour noted that due to matters arising within the gaol community and reflecting to some degree apparently upon the applicant's Aboriginality, he has been on protection for some six months; further that since going into custody he and his partner have had their first child. 9 The sentencing judge referred to the applicant's significant record for dishonesty matters and drug matters. In particular he referred to the applicant having had a drug problem after having become associated with a former girlfriend. In the evidence before the trial judge was material that disclosed that the applicant's drug problem had either commenced or been exacerbated when he had sustained a severe motor cycle accident and later - although he obtained compensation or damages in respect of that accident - that money he had received had been turned over to his father who had apparently taken the money and left Australia. 10 His Honour noted that the applicant had on a number of occasions unsuccessfully attempted to rehabilitate himself from his drug problem. The applicant's record shows that that drug problem certainly coincided with and probably underlay the various offences of dishonesty committed by the applicant up to the offences, the sentences for which are challenged by the Crown before us. 11 His Honour made a positive finding that "these offences and the reason for committing these offences was to get funds to continue a heroin and speed habit". His Honour then referred to the circumstance that the steal motor vehicle matter occurred whilst the applicant was on bail pending the hearing of the appeal to the District Court. He further referred to the fact that the receiving matter was also independently committed whilst on bail. He had regard to the lengthy letter which is with the materials that the applicant had provided on sentence referring to the applicant's conversion and determination to rehabilitate himself. He had regard to the applicant's oral evidence before him which allowed him to assess the applicant and the applicant's genuineness in asserting, as he did in his oral evidence, that he had entirely avoided the use of drugs, intending within the gaol system to render himself completely free from his addiction. 12 His Honour tempered his observations of that matter by a reflection that the applicant had likewise managed to avoid drugs in prison previously, but had unfortunately become reinvolved on his release on a prior occasion. But his Honour in that regard referred to the applicant's statement that he had turned to religion; that he had particular regard for the fact that a young son that had been born to his partner and himself and that he had reached a turning point in his life where he wants to remain drug free and not to offend again in the future, "because he obviously recognises that if he continues to offend the way that he has continued he will be sent to gaol for increasingly longer periods". 13 His Honour later in his remarks on sentence and referring to the changed personal circumstances of the respondent, his partner and his young child, referred to the support available to him from his mother and his partner and the presence of the child. His Honour held:- "I also am prepared to accept his evidence that he has reached a turning point in his life having regard to those matters but recognising the problems that he has had in the past there is obviously also a need for a longer period under supervision by the Probation and Parole Service to assist his full rehabilitation within the community and his reintegration into the community." 14 It was in recognition of those matters, I apprehend, that his Honour passed the sentences that he did and structured them in the way in which he did and having found special circumstances, provided for release on parole on condition that the supervision and guidance and direction of the Probation & Parole Service for such time over that period as that service might see fit - particularly in regard to drug and alcohol counselling and/or treatment including residential rehabilitation if appropriate should be a condition of release. 15 The submissions made by the Crown are that his Honour fell into error in a number of respects. In the written submissions it is pointed out that less than one month after being granted the bail the respondent committed the offences of stealing the motor vehicle and that it was within a short period of time thereafter that the applicant came again before the court and was released to bail on 23 November 2001. 16 It was on 24 July 2002 that the applicant was arrested in respect of the offences involving the Mack Truck. The applicant had pleaded guilty to the matter on 3 October 2002 and it was contended in this regard that there has been a principle on sentencing to which his Honour had failed to pay sufficient regard, which applied or at least if not required - was a principal of great weight to be considered, on the question of cumulation of sentences rather than concurrence. It was submitted in reliance on such cases as Regina v. Moffitt (1990) 20 NSWLR 114, WHS (CCA, unreported 27 March 1995), that the fact of the offences being committed on bail warranted - and indeed in the special circumstances at least of this case required - that the sentences passed for the stealing offences and the receiving offences should have been made cumulative each on the other and not merely cumulative upon the earlier otherwise unrelated offences. 17 It was submitted that in the passage in his remarks on sentence when his Honour dealt with the question of cumulation, his Honour erred in failing to have regard to necessary relevant matters. His Honour said at page five (page 32):- "The two matters that are before me occurred at different times but I propose to deal with them concurrently, but not concurrently with the sentences that he is currently serving because they are unrelated. I see no reason to distinguish between the two offences that are before me and the matters on the Form 1 because they carry exactly the same penalty and there does not seem to be any particular reason apart from the question of the difference in time in which they were committed to deal with them separately, except insofar as to order that the sentences are to be served concurrently." 18 It is accepted in the Crown's written submissions that that passage may not precisely and accurately reflect what his Honour had said. Nonetheless the general gravamen of it seems clear enough and that is that his Honour did not see any distinction between the two offences that he was considering such as would warrant the sentences for them being served consecutively. 19 Section 55 of the Crimes (Sentencing Procedure) Act 1999 provides that:- "In the absence of a direction by a trial judge a sentence of imprisonment imposed on an offender who:- (a) is subject to another sentence that has yet to expire, or (b) in respect of whom another sentence has been imposed in the same proceedings, is to be served concurrently with the other." 20 It is submitted against the Crown's submissions by Mr. Austin, who appears for the respondent, that that section creates a presumption of some kind in favour of concurrency. It is submitted to the contrary by the Crown - that it merely reflects the circumstances under which the sentences will be served and in no way displaces the previous practice and policy concerning the exercise of the discretion to order that other sentences might be served concurrently or cumulatively. 21 In this case it was open to his Honour to order that the sentences be served, or to direct that the sentences be served, cumulatively. They were unrelated. They were offences of a different kind. They were aggravated in each case by separate exercises of infringement on bail. His Honour chose not to so direct. 22 In my view his Honour fell into error, considering his remarks as best I can, having regard to the Crown's submissions that what appears in the written material may have been corrupted. I am not able to accept that his Honour's reasons show an adequate basis for the course that his Honour took. 23 In the oral argument before us the Crown summarised the impact of its submissions. That is to say that the sentences his Honour passed were themselves in error as failing to have regard to the aggravating circumstance of offending on bail which now is an aggravating circumstance which s.21A of the Crimes (Sentencing Procedure) Act 1999 requires to be taken into account and that there was an absence of an adequate reason, these circumstances having existed, for the sentences not being made cumulative to each other. 24 I am not persuaded that his Honour necessarily erred in the length of the sentences for each individual offence that he passed having regard to that matter of aggravation by reason of offences whilst on bail and having regard to what his Honour had said concerning totality. In particular I am not so persuaded because his Honour imposed the sentences particularly referring to the fact of protection, the lack of other rehabilitative processes that might be extended to him in gaol because of his being on protection and his willingness to the turn the corner and rehabilitate himself. 25 Notwithstanding the error which in my view the Crown has succeeded in making out and that the sentences are such as to require this court to reiterate its denunciation of the commission of crimes whilst on bail and once again to confirm that ordinarily crimes committed whilst on bail will involve - whether by way of accumulation or an aggravated sentence - condign punishment, having regard to his Honour's view that this applicant in his special circumstances had turned the corner, I reflect upon that passage of the Chief Justice's judgment in Regina v. Hitchcock (CCA, unreported 13 July 1998) which reiterates the passage taken from the judgment of Chief Justice King in Regina v. Osenkowski (1982) SASR 212, at 212 and 213. That passage which emphasises the opportunity for a trial judge to extend leniency in circumstances where a judge's sympathies are reasonably excited by the circumstances of the case, is a passage which particularly applies to the exercise of a discretion residing in a Court of Criminal Appeal to dismiss the appeal, notwithstanding error being detected: see Queen v. Holder (1983) 3 NSWLR 245 at 255 to 256 in the judgment of the Chief Justice and in the judgment of Justice Priestley at 269. Justice O'Brien, the Chief Judge of the Criminal Division agreed with their Honours. 26 It appears to me therefore that notwithstanding that in my view the trial judge fell into error, as I have said, and as a consequence the total sentences passed in the upshot having regard to the way in which his Honour directed that those two sentences be served consecutively were inadequate, nonetheless this is an appropriate matter for the court to withhold its hand in the exercise of that discretion. I would, for those reasons, dismiss this appeal. 27 HODGSON, JA: I agree. But for the view that the respondent has truly reached a turning point in his life and is truly determined not to re-offend, a much heavier penalty would have been required. The penalty imposed in this case must be viewed as being in the nature of a last chance. If the respondent were to offend again, as he has done in the past, he should not expect leniency in the future. 28 SIMPSON, J: I agree with the reasons and view proposed by Justice Greg James. I also agree with the additional remarks of the presiding judge. 29 GREG JAMES, J: I also agree with the remarks made by the presiding judge. 30 HODGSON, JA: The order of the court is the appeal is dismissed. ********** Last Modified: 07/10/2003 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.