R v OHAR [2004] NSWCCA 252

New South Wales Court of Criminal Appeal

CITATION : R v OHAR [2004] NSWCCA 252 HEARING DATE(S) : 2 July 2004 JUDGMENT DATE : 2 July 2004

JUDGMENT OF : Hulme J at 1 DECISION : Appeal dismissed

PARTIES : Regina Adam OHAR FILE NUMBER(S) : CCA 60451/03 COUNSEL : Crown: G Rowling Applicant: H Dhanji SOLICITORS : Crown: S Kavanagh Applicant: SE O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 20000337 FILE NUMBER(S) : LOWER COURT Milson DCJ JUDICIAL OFFICER :

- 9 - IN THE COURT OF CRIMINAL APPEAL

60451/03

HULME J

Friday, 2 July 2004 R v ADAM OHAR Judgment

1 HULME J: On 14 April 2003 this applicant for leave to appeal was sentenced by Judge Milson in the Parramatta Drug Court for various offences to which he had pleaded guilty. The offences fell into three groups. In respect of the first group Judge Milson acted pursuant to section 12 in part 2 of the Drug Court Act 1998. Section 5AF of the Criminal Appeal Act provides that the power of the Court of Criminal Appeal to hear and determine appeals in respect of such matters is to be exercised by a single judge and that is what I am now doing. 2 Appeals by the applicant in respect of the second and third groups of offences were considered by three members of this Court in R v Ohar [2004] NSWCCA 83. In the course of those proceedings, the Court held it could not deal with the first group of offences, nor with the third, in respect of which Judge Milson had been exercising a Local Court jurisdiction, but went ahead and dealt with these appeals in the second group. A Crown appeal in relation to the first and second group was also considered and dismissed. 3 The first group included nine offences. One was of breaking, entering and stealing committed on 10 July 2000; one of possession of housebreaking implements, viz. a pair of garden clippers found in the appellant's pocket on that same day; and a third was of being carried in a motor vehicle knowing it to have been stolen. (At times that offence has been referred to by judges who have previously considered the matter as stealing a motor vehicle. I wish to make it clear that, though I may also use that description, I am conscious of the nature of the appellant's offence.) 4 When the offences in this group were first dealt with in the Drug Court on 15 January 2001, the appellant was sentenced in respect of the three just described to concurrent terms of imprisonment of 12 months and three weeks – a period Judge Barnett arrived at by taking, from a period of 18 months he would otherwise have imposed, five months and four days the applicant had spent in pre-sentence custody. The sentences were suspended in consequence of the appellant accepting the conditions of a drug program. 5 The applicant entered into the drug program. His participation in this is detailed in the remarks of the Court of Criminal Appeal in the matter to which I have referred and which I need not repeat. In summary, the appellant left the program and his involvement in it was terminated by the Drug Court in September 2001. 6 While in the program, he spent a further period of 37 days in custody, although four of these seemed to have related to sanctions imposed on him. He also spent a period of approximately one month in the full-time residential rehabilitation which might be regarded as quasi-custody. There was some further time spent participating in the program. 7 Included in the remaining six offences were 2 of having goods in custody, one of malicious damage and one of breach of a recognisance for breaking, entering and stealing. In respect of these six, Judge Milson imposed a penalty of imprisonment until the rising of the Court and, unsurprisingly, there is no appeal against those sentences. In respect of the three offences previously mentioned, Judge Milson imposed concurrent sentences of fixed terms of nine months imprisonment dating from 9 October 2002, the date upon which the applicant was arrested and it is these sentences which are the subject of the current appeal. 8 The gravamen of the complaint in the appeal is that Judge Milson's imposition of imprisonment for a fixed term of nine months was manifestly excessive in that it did not give adequate recognition to: (i) the custody the appellant had endured prior to 15 January 2001; (ii) A non-parole period of only about 4½ months the fact that the sentence of 12 months and three weeks imposed by Judge Barnett could be inferred by reference to the 18 months and the five months, four days to which I have previously referred to have envisaged a non-parole period of only about four and a half months; (iii) the time spent in custody or quasi custody during the drug program. 9 Attention was drawn to the terms of section 12 of the Drug Court Act which, so far as is relevant, provides: (i) On terminating a drug offender's program, the Drug Court must reconsider the drug offender's initial sentence. (ii) In reconsidering a drug offender's initial sentence, the Drug Court must take into consideration: (a) the nature of the drug offender's participation in his or her program, and (b) any sanctions that have been imposed on the drug offender during the program, and (c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment: (i) under the sentence, or