R v. White [2003] NSWCCA 88

New South Wales Court of Criminal Appeal

CITATION : R v. White [2003] NSWCCA 88 HEARING DATE(S) : Tuesday 25 March 2003 JUDGMENT DATE : 25 March 2003

JUDGMENT OF : Studdert J at 1, 29; Smart AJ at 2 DECISION : Leave to appeal granted; Appeal dismissed

CATCHWORDS : Break, enter and steal offences - sentence not excessive - no question of principle PARTIES : Regina Michael White FILE NUMBER(S) : CCA 60044/02 COUNSEL : Applicant: In Person Crown: G.I.O. Rowling SOLICITORS : Applicant: In person Crown: S. E. O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0253 FILE NUMBER(S) : LOWER COURT Nield J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60044/02

Studdert J Smart AJ

Tuesday 25 March 2003 R v. Michael Scott WHITE Judgment

1. STUDDERT J: I ask Smart AJ to give the first judgment. 2. SMART AJ: Michael Scott White seeks leave to appeal against the length of sentences imposed upon him in the District Court consequent upon his pleas of guilty, namely concurrent sentences of imprisonment of five years three months with a non-parole period of three years three months for each of two offences of break, enter and steal and a concurrent sentence of a fixed term of twelve months for the offence of take and drive a conveyance without consent of the owner. 3. The Court took into account three further offences, namely possess prohibited drug, enter enclosed lands and possess implements capable of being used to enter and drive a conveyance. All the offences occurred on the one day. 4. On about 28 May 2001 the applicant took and drove a motor vehicle belonging to another in circumstances not revealed in the evidence. On subsequent examination of the vehicle, the police found inside it two yellow handled screw drivers, two sets of car keys and a nail file, which was jammed into the ignition barrel of the vehicle. 5. About 11.50 am on that day the applicant pulled the vehicle up outside unit 2/12 Cameron Street, Lidcombe. After an initial reconnaissance of the block, the applicant knocked on the door of unit 2. On receiving no response he kicked open the front door, entered the unit and removed items from the unit and put them in the stolen car. The applicant made several trips from the unit to the car. 6. The applicant also broke into unit 4/17 St Johns Road, Auburn, a townhouse, damaging the front door around the lock and the timber surrounding the lock. The door leading into the garage had been forced open and the metal lock damaged. There was a large hole in the wall next to the door. The roller door of the garage had been forced open. There were a number of items missing from the house. 7. Neither of the homes was vandalised and nobody was threatened or injured. When the police noticed the applicant in the stolen vehicle driving along Albert Street, Lidcombe, they attempted to stop it. The applicant slowed down the vehicle, jumped out and ran off, allowing the vehicle to roll into a tree on the footpath. The police chased the applicant on foot through the rear yards of houses on Oxford Street, Lidcombe. He hid under a house and eventually he was located with the aid of a sniffer dog and arrested. All the property stolen was recovered. 8. The applicant was born on 24 February 1971. He comes from a dysfunctional family, his upbringing was disturbed and unstable and he had an unfortunate childhood in the teenage years, being introduced to drugs at an early age. 9. His lengthy criminal history begins when he was aged fifteen. Since then he has committed many offences - about ninety two according to the judge. More than half of them have involved dishonesty and many of the offences have involved breaking and entering into homes. 10. The applicant has been on drugs of addiction for more than half his life. He commenced with cannabis and progressed to heroin, which he used for only a short time and then moved to amphetamine, which became his drug of choice. He was using amphetamine at the time of the offence but the judge was unable to determine whether he was under the influence of amphetamine when he committed the offences. 11. The applicant was released from prison about 18 September 2000 and returned to using amphetamine within two or three days. The judge noted that the applicant was on parole at the time of the offences. The applicant entered pleas of guilty at the earliest opportunity and the judge gave him a discount of twenty five per cent on that account. The judge found that the applicant was not contrite. In his evidence before the judge and in his submissions to this Court the applicant stressed that when he was released from Junee Correctional Centre in September 2000 he was not provided with a necessary psychiatric medicine, Dexamphetamine, which he had been receiving in custody for the treatment of adult ADHD. His parole conditions, he insisted, required him to take that medication. He said that he had significant difficulty in coping without that medication. 12. Mr White has referred us to a parole report of 30 June 2000 dealing with whether Mr White should be released on parole. That report notes that Mr White was prescribed Dexamphetamine for his ADHD and continues, "The consulting psychiatrist will refer Mr White to a community doctor where he can receive his medication once released."