R v O'HEIR [2003] NSWCCA 126

New South Wales Court of Criminal Appeal

CITATION : R v O'HEIR [2003] NSWCCA 126 revised - 15/05/2003 HEARING DATE(S) : 2 May 2003 JUDGMENT DATE : 2 May 2003

JUDGMENT OF : Levine J at 1; Simpson J at 17 DECISION : Leave to appeal granted. Appeal dismissed.

CATCHWORDS : Multiple offences - young adult - conditions of custody - grossly disadvantaged background - totality R v Fernando (1992) 76 A Crim R 58 CASES CITED : R v Henry (1999) 46 NSWLR 364 R v Ponfield (1999) 48 NSWLR 327 R v Powell [2000] NSWCCA 108 REGINA (Respondent)

PARTIES : v

SCOTT LESLIE O'HEIR (Applicant) FILE NUMBER(S) : CCA 60017 OF 2003 CT Loukas (Applicant) COUNSEL : DM Howard (Respondent) DJ Humphries (Applicant) SOLICITORS : SE O'Connor (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/31/0092 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60017 OF 2003

LEVINE J SIMPSON J

FRIDAY 2 MAY 2003 REGINA v SCOTT LESLIE O'HEIR Judgment 1 LEVINE J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 28 June 2002 by her Honour Judge English. The applicant had pleaded guilty in the Local Court on 20 March last year to ten counts of break, enter and steal, each of which can attract a maximum penalty of fourteen years imprisonment pursuant to section 112 of the Crimes Act. 2 The ten offences, it is to be noted, were committed over a period from 7 December 2001 to 3 February 2002. Four matters in a Form 1 schedule were to be taken into account: resisting arrest, escape from lawful custody, goods in custody, and break and enter with intent. 3 Her Honour imposed the following sentences. In respect of counts nine and ten, a term of imprisonment of five years with a non-parole period of three years. In relation to counts four and seven, a fixed term of three years. For counts six and three a fixed term of two years was imposed, count five a fixed term of eighteen months, and counts one and two, in respect of the former of which the Form 1 matters were taken into account, a fixed term of eighteen months, and in relation to count eight a fixed term of one year. 4 The facts of the substantive offences are set out in detail on pages one to six of her Honour's remarks on sentence. For present purposes I need only note that her Honour found counts nine and ten, which attracted the highest of the imposed sentences, the more serious by reason of the premises being occupied at the time the offences were committed. Equally it is clear that the offences were drug dependence driven at the time. The offender, who was aged eighteen, was injecting himself twice a day with amphetamines. The applicant was also on parole and subject to bail conditions. 5 The applicant raises essentially four matters. First that her Honour erred in giving insufficient weight to the applicant's age. Secondly, that her Honour erred in giving insufficient weight to the rigours of protective custody. Thirdly, as it has now evolved, that her Honour erred in paying insufficient regard to what I will describe as the grossly disadvantaged background of the applicant, hitherto referred to as the Fernando component, but not appositely, by reason of the applicant not being an Aboriginal (Reg v Fernando (1992) 76 A Crim R 58). Fourthly, that her Honour's determination of the appropriate sentence was manifestly excessive. 6 In relation to the applicant's age, her Honour quite starkly remarked in my respectful view, and appropriately, that the offender was "very, very young" and was just aged eighteen. At page eight of her remarks on sentence she made it clear that she was extremely conscious of the need for rehabilitation and the principle that punishment and general deterrence may properly be regarded as less important than individualised treatment aimed at rehabilitation for a young offender. 7 The applicant's submission in the written submissions is to this effect: that despite the references to the youth of the applicant, as with many other factors required to be taken into account, it is sometimes more apparent in the outcome rather than in the lengthy recitation of relevant factors that these factors may not have been considered. Further, in so far as youth is concerned, the sentencing outcome indicates an insufficient weight was attributed to this factor. That of course is the reverse of the situation where the sentencing judge makes no mention of anything, which more legitimately can give rise to a complaint of the kind otherwise sought to be made here. 8 For the Crown, and rightly so in my view, it is submitted that this applicant was an adult, a young adult, and that the principles relating to general deterrence and specific deterrentce vis-à-vis a young person are somewhat diminished. Viewing this ground discretely, I am not persuaded that her Honour's clear attention to the question of age was not by itself reflected in the ultimate outcome. 9 The second matter was the question of the rigours of protective custody. Here again her Honour remarked that this was the first time the applicant was in an adult prison and noted that he was spending time in strict protection and had already been assaulted. That was her Honour's first reference. She later indicates having given specific consideration to additional matters, one of which was that the offender will spend his time in custody and in protection. Here again I am not persuaded that the essential argument that, despite the mention by the sentencing judge there was no evidence of effect, has been made out. 10 The third matter, being the extremely deprived and disadvantaged background of the applicant, is one which attracted careful and sympathetic attention on the part of the learned sentencing judge, and in a way again I can indicate at this point that can be said to be reflected in the ultimate outcome. 11 I respectfully adopt the observations generally made by my colleague Justice Simpson in Reg v Powell [2000] NSWCCA 108 at paras [23] – [25]. I add particularly that, leaving aside the discrete matter of Aboriginality, it can hardly be said that her Honour was not conscious of the background, which she described as tragic, and of all the components of disadvantage which would otherwise be reflected in the application of Fernando in the case of an Aboriginal applicant. 12 The general concept of deprived background is, first, addressed clearly by her Honour and secondly, in my view, can be understood to have been carefully weighed by her and taken into account in the ultimate outcome. 13 The applicant's horrendous drug problems, apparently initiated by one of the factors in that deprived and disadvantaged background, namely by his mother and at the age of thirteen, also are starkly highlighted by her Honour in a way that conforms with the suggested consideration of that component to which Ms Loukis referred as emanating from the decision in Reg v Henry (1999) 46 NSWLR 364; see also Reg v Ponfield (1999) 48 NSWLR 327. 14 The recourse to the Judicial Commission sentencing statistics is of course of interest, to some degree important, but must be approached with the circumspection to which a great body of authority refers in relation to that material. 15 The four bases upon which it is sought to have this Court interfere in my view have all failed. Her Honour gave careful consideration to each and importantly the view can be formed, and certainly is by myself, that the end result, contrary to the fundamental submission for the applicant, in fact reflects such proper consideration of each and all of them. 16 For those reasons, whilst I would grant leave to appeal, I would propose that the appeal be dismissed. 17 SIMPSON J: I agree. 18 LEVINE J: The orders will be as I have proposed. **********