Reported Decision : 58 NSWLR 581 142 A Crim R 489 New South Wales Court of Criminal Appeal CITATION : R v Durocher-Yvon [2003] NSWCCA 299 revised - 21/10/2003 HEARING DATE(S) : 14/10/2003 JUDGMENT DATE : 20 October 2003 JUDGMENT OF : Sheller JA at 1; Sully J at 2; Howie J at 3 DECISION : Application for leave to appeal be granted but the appeal is dismissed. CATCHWORDS : Criminal Law and Procedure - Appeal and new trial - Evidence of applicant entering protection after sentence imposed - whether the evidence should be received - relevance of protective custody to sentencing. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 R v Fordham (1997) 98 A Crim R 359 R v Patison [2003] NSWCCA 171 R v Ingram [2002] NSWCCA 398 CASES CITED : R v MacDonnell [2002] NSWCCA 34 R v Wahabzadah [2001] NSWCCA 253 R v S [2000] NSWCCA 13 R v GP [2001] NSWCCA 231 R v Totten [2003] NSWCCA 207 PARTIES : Regina v Roland Steven Durocher-Yvon FILE NUMBER(S) : CCA 60066/02 COUNSEL : D. Arnott - Crown A. Francis - Applicant SOLICITORS : C.K. Smith - Crown Ross Hill & Associates - Applicant LOWER COURT District Court JURISDICTION : LOWER COURT 01/21/0231 FILE NUMBER(S) : LOWER COURT Nield DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60066/02 SHELLER JA SULLY J HOWIE J MONDAY 20 OCTOBER 2003 Regina v Roland Steven DUROCHER-YVON Judgment 1 SHELLER JA: I agree with Howie J. 2 SULLY J: I agree with Howie J. 3 HOWIE J: This is an application for leave to appeal against the sentence imposed on the applicant by his Honour Judge Nield in the District Court on 1 February 2002. The applicant had pleaded guilty before a magistrate to a number of offences of dishonesty and was committed for sentence. In the District Court he pleaded guilty to 21 offences and asked the sentencing judge to take into account a further 180 offences on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act. As a result Judge Nield sentenced the applicant to a total sentence of imprisonment for 7 years 4 months and 2 weeks and specified a non-parole period of 4 years 7 months and 2 weeks. The sentences were to commence on 2 September 2001 and the non-parole period is to expire on 15 April 2006. 4 There is one ground of appeal relied upon being to the effect that this Court should receive as fresh evidence the fact that from 1 February 2002, the date upon which he was sentenced by Judge Nield, the applicant has been required to serve his sentence in protective custody. There is no criticism of the length of the sentences imposed by Judge Nield, the facts as found by his Honour or the method by which the sentences were calculated. 5 In order to determine the ground of appeal relied upon, it is unnecessary to detail the offences for which Judge Nield sentenced the applicant or the way in which the sentences were structured. It is sufficient for present purposes to indicate that as a result of numerous fraudulent acts committed by him over the period from 24 April 1999 to 19 September 2001, the applicant obtained money and other financial advantages totalling $97,170.25. The proceeds of this persistent criminal conduct were spent on living expenses, a holiday, luxury items, cocaine use and gambling. The sentencing judge determined that the applicant "likes to use other people's money in order to live the way that he wishes to live". His Honour also came to the conclusion that the applicant, who was 31 years of age when sentenced, was "obviously a conman" and that he may be a pathological liar. The applicant has a criminal record including a large number of entries for matters of dishonesty and, at the time that some of the offences, for which Judge Nield dealt with him, were committed he was on a good behaviour bond or on bail. 6 It should be noted that Judge Hock dealt with the applicant on 15 November 2002 for an offence of sexual intercourse without consent. Her Honour sentenced him to imprisonment for 5 years with a non-parole period of 3 years to date from 16 April 2005, that is a date one year before the expiration of the non-parole period specified by Judge Nield. As a consequence of that sentence the earliest date upon which the applicant can be considered for release to parole is 18 April 2008. 7 Further, the applicant was before the Penrith Local Court on 24 May 2002 when he was sentenced to a number of fixed term sentences of 9 months each. Those sentences were to commence on 24 May 2002 and were fully concurrent with the sentences imposed by Judge Nield. 8 The material upon which the applicant relies is principally an undated letter from the Department of Corrective Services, the relevant part of which is as follows: You client has been verbally informed of the reason he is being held as a non-association inmate whilst held at the Metropolitan Remand & Reception Centre. On 1 February 2002 in Prisoner Application number 382783, your client requested protective custody because he believed he was "….in great danger". He also requested a change of name whilst in custody. As a result of his application further inquiries were undertaken by the Intelligence Section. There is substantial evidence to indicate that the inmate is at risk in gaol and steps had to be taken to minimise that risk. Due to this fact, approval was given to place your client on non-association to ensure his safety. This situation will be reviewed at regular intervals whilst your client is in custody, to ensure that the reason for non-association is still pertinent. 9 The applicant also relies upon a letter from a psychologist dated 23 May 2002 containing the following paragraph: I have been seeing inmate Steven Durocher-Yvon (MIN: 204669) on a weekly basis since November 2001. He self-referred. We have been addressing his offending behaviour resulting from a gambling addiction. In February 2002 Mr Durocher-Yvon was placed in protective custody (non-association) because of a threat against his life. Life in gaol is considerably more difficult when in this position. 10 It can be gleaned from the material before the Court that the applicant, apparently on the day when he was sentenced by Judge Nield, requested that he be placed in protective custody and since then has been held on protection. There is nothing in the material indicating why it was that the applicant, who had been in custody on remand, chose that day to seek protection or the circumstances in which the gambling debts arose. 11 The submission made on behalf of the applicant is that this Court should receive this material into evidence and, as a result, vary the sentence imposed by Judge Nield in order to reflect the fact that the applicant may be required to serve his sentence on protection thus imposing more onerous conditions upon him than was apparent at the time he was sentenced. 12 In Fordham (1997) 98 A Crim R 359 at 378 I said this about sentence appeals based on fresh evidence: Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed. However, fresh evidence has been received by this Court where a miscarriage of justice may have occurred because there has been incompetent legal representation at the hearing before the sentencing court: R v Abbott (1984) 17 A Crim R 355 or where there has been negligence or carelessness in the presentation of the defence: R v McKenna (CCA, 16 October 1992,unreported). It has been held that new evidence may be admitted where the evidence has real significance to the sentencing proceedings, and where the significance of the evidence was unknown to the appellant and the existence of that evidence was not made known to the legal representatives at the time of sentencing: R v Goodwin (1990) 51 A Crim R 328, cf R v De Marco (CCA, 20 November 1995, unreported). There is also a general power in the Court to receive fresh or new evidence where the interests of justice require that course: R v Many (1990) 51 A Crim R 54. 13 It is submitted on behalf of the applicant that the fact that he might spend his sentence on protection was material that was not available at the time of sentence and, if it had been, it would have had a real significance to the sentencing proceedings. The Court's attention was drawn to the fact that it is generally regarded as a mitigating factor that an offender would be required to spend the sentence on protection as it has been accepted that this will impose more onerous conditions of confinement upon the offender and interfere with his or her eligibility to available courses, programmes and activities. Reference was made to the decision in R v Patison [2003] NSWCCA 171 as to the deleterious effects of serving a sentence on strict protection. 14 It is remarkable that there is no evidence from the applicant filed in support of the application. It seems that the applicant had some concern about his gambling debts and the consequences for him were he unable to pay them before he appeared for sentence. He raised this matter in an interview with police after his arrest. But why it was that the applicant did not raise this matter with his legal representatives or himself during the course of his evidence before the sentencing judge remains a mystery. Further, the Court has scant evidence as to what have been the conditions of his custody prior to August last. 15 The Crown has objected to the material being received by the Court on the basis that there is nothing to show when it was that the applicant sought to be placed in protection and, therefore, that the material was not available at the time of sentence or that otherwise a miscarriage of justice might have occurred. Further, the Crown submits that, on a consideration of the material it has placed before the Court, the custodial situation for the applicant is not as onerous as the fact that a prisoner has been placed on protection might otherwise suggest. 16 The Crown relies upon a letter from the General Manager of the Junee Correctional Centre, the prison in which the applicant is presently being housed. The significant part of this letter is as follows: Inmate 204669 Roland DUROCHER-YVON is presently a B classification inmate who has been housed at Junee Correctional Centre since 17th August 2003. Inmate DUROCHER-YVON is currently a Special Management Area Placement (S. M. A. P.) inmate, with records indicating that on or about 1st February 2002 he was designated this status as a result of unpaid gambling debts. In accordance with this status, inmate DUROCHER-YVON has unimpeded access to all Educational and Vocational Programs available at Junee Correctional Centre. Similarly, inmate DUROCHER-YVON is afforded access to Counsellors and other Program related services available at this Centre. Inmate DUROCHER-YVON is also permitted access to authorised recreational areas including the Centre gymnasium, recreation yards and oval. Inmate DUROCHER-YVON is currently accommodated in Unit B3, which is a designated Special management Area. Following consultation with Staff allocated to this Unit, it has been established that inmate DUROCHER-YVON appears to interact well with other inmates and has raised no concerns or issues in relation to his current placement. Records indicate that inmate DUROCHER-YVON is presently employed on an assembly line in the Industries Area, having gained employment on 11th September 2003. As can be seen from the aforementioned information, inmate DUROCHER-YVON is not deprived of access to any programs or services as a result of his status as a S. M. A. P. inmate. Similarly his classification is not affected by this status. 17 The Crown also relies upon material from the Judicial Commission which reveals that as at 31 July 2000, 93.9 per cent of the inmates at the Junee Correctional Centre were on protection, see Sentencing Trends No 21 February 2001, Protective Hardship and Custody in Prison by Lynne Barnes. That paper makes it clear that there are different types of protection and that facilities differ as between correctional institutions. 18 In my opinion the Court should refuse to intervene to alter the sentence imposed by Judge Nield. This Court does not supervise sentences once they have been imposed and it would be a rare case where it would reduce a sentence because of circumstances arising after the offender commenced to serve the sentence. In particular, the fact that an offender may have to serve a sentence under more onerous conditions than were apparent at the time of sentence will not necessarily require this Court to interfere with a sentence that was otherwise unimpeachable. Although the applicant relied upon the decision of this Court in R v Ingram [2002] NSWCCA 398 there is nothing in that case which offers support to the present application. That was a case in which the Court found error in the exercise of the sentencing judge's discretion. Although the Court would not otherwise have intervened to correct the error, it did so because some other sentence should have been imposed given the evidence then before the Court as to the applicant's custodial situation. It was simply a case where the Court resentenced the applicant based upon material then before it. 19 Further, the fact that an offender is to serve his sentence on protection will not necessarily result in a shorter head sentence or a finding of special circumstances. In R v Wahabzadah [2001] NSWCCA 253, in a case involving protective custody for a first time offender, with the concurrence of Wood CJ at CL, I stated: 19. Although the fact that the applicant had placed himself into protective custody in the gaol was a matter relevant to the question of special circumstances, it was not decisive. It will not always require the sentencing judge to find special circumstances justifying a reduction in the non-parole period. Much will depend upon the particular circumstances such as the reasons for the prisoner being in protection, the prospects of his remaining in protection throughout the sentence and the actual effect that it has upon the prisoner and his prospects of reform. What weight such a factor will have will also depend upon the objective seriousness of the offence for which the sentence is passed and the extent to which other factors such as general and specific deterrence must be reflected in the non-parole period. 20 Although the question in that case was concerned with whether there should have been a finding of special circumstances, the same considerations seem to me to apply to the question of whether the head sentence should be reduced. Generally speaking, the fact that an offender is to serve a sentence under more harsh or restrictive conditions is relevant to an assessment of the sentence as a whole rather than the length of the non-parole period; R v MacDonnell [2002] NSWCCA 34. In R v S [2000] NSWCCA 13 sentencing judges were cautioned against applying such a discount twice in reducing both the head sentence and then the non-parole period. Once that matter has been taken into account in determining the length of the sentence to be served, it may have no further role to play in determining whether special circumstances exist unless by itself or in combination with other factors it points to a need to further reduce the minimum term of imprisonment to be served by the particular offender; see for example R v GP [2001] NSWCCA 231. 21 In R v Totten [2003] NSWCCA 207, a case to which neither party referred during their submissions, this Court was concerned with the relevance of the fact that the offender may be required to serve some or all of a sentence under protection because he had been convicted of a child sexual assault offence. James J, with whom Sheller JA and O'Keefe J agreed, stated: 43 There are difficulties in a sentencing judge taking into account a circumstance that part or all of a sentence of imprisonment is likely to be served in some form of protective custody. Taking such a circumstance into account involves the sentencing judge in making a prediction about how the offender will be dealt with in the Correctional system. The sentencing judge's prediction may not be fulfilled. Furthermore, as Bell J pointed out in her judgment in Scott [2003] NSWCCA 28 , there are within the Correctional system not just one form of protective custody with fixed conditions of custody but a number of different kinds of protective custody, the conditions of which vary considerably in the extent to which they depart from the conditions of custody to which prisoners in the general prison population are subject. Not all forms of protective custody involve the serious disadvantages referred to by Hunt J in Burchell [(1987) 34 A Crim R 148], such as being obliged to serve the sentence under heavy protective guard and in isolation, even from other inmates on protection. In some forms of custody which are described as protective custody the prisoner is kept in a Correctional Centre or an area of a Correctional Centre in which the other inmates are prisoners who have been sentenced for similar offences and the prisoner is able to mix freely with those other inmates and to have access to programmes conducted by the Department of Correctional Services. I would agree with what Bell J said in par 34 of her judgment in Scott that:- "It is appropriate for a sentencing court to take into account the circumstance that a sexual offender may spend his custody in conditions subject to some form of 'protection' status. Evidence as to the likely conditions of custody is important if the Court is to make an informed assessment of the extent to which the offender's custody will be more onerous than that of prisoners housed in the general prison population. The concerns of which Hunt J spoke in Burchell would seem to be significantly lessened for sexual offenders who are placed in special facilities such as the MSPC…". 44. Notwithstanding the difficulties in a sentencing judge taking into account, especially without the benefit of evidence, a circumstance that part or all of any sentence of imprisonment imposed is likely to be served in some form of protective custody, I consider that it is a well entrenched principle that it is a circumstance that a sentencing judge should take into account, in favour of the prisoner, both in determining the length of the sentence to be imposed and in determining whether there are special circumstances. That a sentencing judge may not have expressly referred to this circumstance in his or her remarks on sentence should not necessarily give rise to an inference that he or she has failed to take the circumstance into account. What weight the circumstance should be given will depend very much on all the circumstances of the particular case. 22 In the present case the protective custody is not due to the nature of the offence for which the sentence is being served, or because the applicant gave assistance to the authorities or for some other reason that is related to the sentence imposed by Judge Nield. There will be any number of reasons why a prisoner may choose to seek protection during the course of serving a sentence and it is not a matter that must always result in a reduction of the sentence that would otherwise be appropriate. The fact that in the present case there appears to be an unexplained coincidence between the imposition of the sentence and the seeking of protection by the applicant does not mean that this circumstance should mitigate the sentence imposed upon him. Further, It is not apparent that the applicant will require protection for the whole of his sentence, although I note that Judge Hock took into account his custodial situation when imposing sentence upon him. Finally, the evidence available does not suggest that the current custodial situation of the applicant requires any adjustment of the sentence imposed by Judge Nield. 23 What this application does illustrate is that, although the fact that the offender may be required to serve his sentence in protective custody is a relevant matter in determining the sentence to be imposed, a sentencing court should not automatically grant a reduction of the otherwise appropriate sentence simply because the offender has been, or will be, on protection during the course of the sentence. In some cases such as prison informers or persons giving assistance to the authorities, the court may confidently assume that the offender will spend most, if not all, of the sentence in some form of strict protection which will carry with it severe physical and mental hardships over and above the normal prison experience. In other cases, such as child sex offenders, the court should recognise that to a degree the range of sentences imposed already has an element of leniency built into it because sentences for such offences are normally reduced to take this factor into account. 24 But in other cases, especially where the offender has sought protection, there may have to be closer scrutiny given to just what effect that factor should have on the sentence to be imposed having regard to the seriousness of the offence, the purposes of punishment and the nature of the conditions of custody which the offender may have to bear by reason of his or her protected status. There are undoubtedly other cases like the present where there might be good reason to doubt that a significant discount would be justified. 25 I propose that the application for leave to appeal be granted but the appeal be dismissed. ********** Last Modified: 10/28/2003 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.