Regina v Delaney [2003] NSWCCA 342

Reported Decision : 59 NSWLR 1

New South Wales Court of Criminal Appeal

CITATION : Regina v Delaney [2003] NSWCCA 342 HEARING DATE(S) : 14/11/2003 JUDGMENT DATE : 14 November 2003

JUDGMENT OF : Santow JA at 37; James J at 1; Barr J at 33 DECISION : Leave to appeal granted - appeal allowed - applicant re-sentenced

CATCHWORDS : Criminal Law - Sentencing - Quasi-custody - Time spent in Drug Rehabilitation Programs LEGISLATION CITED : Crimes (Sentencing Procedure) Act Criminal Appeal Act R v Campbell (unreported 12 April 1999) R v Eastway (unreported 19 May 1992) CASES CITED : R v Henry (1999) 46 NSWLR 346 R v Kivits (unreported 4 November 1993) R v Thompson (unreported [2000] 362) PARTIES : Reginal v Bryce Trent Delaney FILE NUMBER(S) : CCA 60259/03 COUNSEL : H Haesler - Applicant P Miller - Respondent SOLICITORS : S O'Connor - Applicant C K Smith - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0667 FILE NUMBER(S) : LOWER COURT Judge Ainsley-Wallace JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60259/03 SANTOW JA JAMES J BARR J

FRIDAY 14 NOVEMBER 2003

REGINA v BRYCE TRENT DELANEY JUDGMENT

1 JAMES J: Bryce Trent Delaney has applied for leave to appeal against sentences imposed on him in the District Court on 14 November 2002 by her Honour Judge Ainsley-Wallace. The applicant had been found guilty after a trial before her Honour and a jury of a charge of robbery in company committed on 7 January 2002. After he had been found guilty by the jury of the charge of robbery in company, the applicant pleaded guilty to one charge of stealing a motor vehicle, which was really a charge of being conveyed in a motor vehicle which he knew to be stolen. The applicant asked Judge Ainsley-Wallace to take into account, and her Honour took into account, in sentencing the applicant for the offence of robbery in company, an offence of self-administering a prohibited drug. The applicant had admitted that he had committed this offence on 6 January 2002, in the course of being interviewed by police in relation to the charge of robbery in company. 2 On the charge of robbery in company her Honour imposed a sentence of imprisonment for four years commencing on 26 September 2002 with a non-parole period of two years. The applicant, who had previously been on bail, had been refused bail after the jury returned its verdict of guilty on 27 September 2002 and the applicant had earlier spent one day in custody which was referable to the offence of robbery in company. 3 On the charge of stealing a motor vehicle her Honour imposed a sentence of a fixed term of imprisonment of one year also commencing on 26 September 2002 and hence to be served completely concurrently with part of the sentence for the offence of robbery in company. 4 The objective facts of the offence of robbery in company were stated by her Honour in her remarks on sentence in a way which has not been the subject of any complaint on the hearing of this application. At pp 1 and 2 of her remarks on sentence her Honour said: "On 7 January 2002 the offender together with two other men entered a convenience store in Darlinghurst. The offender had a black jumper pulled up over his head with only his face visible. While the offender stood by the front of the shop the other men moved quickly behind the counter. One of the men pointed a syringe at the shop assistant and demanded that she open the till. He took money from the till. The second man at the counter slammed his hand on the counter and demanded more money. He pushed the woman against the wall. The woman's husband who was in a small room at the rear of the shop and, hearing the noise, came out brandishing the metal pipe of a vacuum cleaner. The offender wrestled the pipe from the man and hit him with it and then used it to fend him off while the other two men made good their escape. The three ran away to a car which was nearby. The police, having been alerted by a witness outside the shop, saw the car shortly afterwards and the three men were arrested. The car was stolen. There is no suggestion that the offender himself stole the car, the charge refers to him being conveyed in a car which he knew to be stolen." 5 Her Honour commented in her remarks on sentence that she had referred in her remarks to one of the other offenders producing a syringe, only as part of her narrative of what had happened inside the store. Her Honour was not satisfied to the requisite standard that the applicant had contemplated that a syringe would be used in the course of the robbery and her Honour said she would not take the production of the syringe into account in sentencing the applicant. 6 Her Honour commented that the victims of the offence of robbery in company were shopkeepers in a vulnerable position and that the offence was one in which actual violence had been used. 7 In her remarks on sentence her Honour noted some of the subjective circumstances of the applicant. At the time he was sentenced the applicant was 25 years old, having been born on 6 January 1977. He had an extensive criminal history but the offences in his criminal history were less serious than the offence of robbery in company for which he was being sentenced and he had not previously been sentenced to any term of imprisonment. Her Honour, however, noted that the applicant had previous convictions for assault and she was not persuaded that the commission of the instant offence was entirely out of character for the applicant. 8 According to information in a pre-sentence report in evidence before her Honour which was based on information supplied by the applicant to the officer who prepared the report, the applicant had been subjected to violence by his father in his childhood. The officer commented in his report that the applicant's mother had given to the officer "a more moderate account of family life and his (the applicant's) father's behaviour". 9 The applicant had a long history of drug and alcohol abuse. He had, however, had periods of employment. He had spent periods in drug rehabilitation programs and her Honour found that there was some hope of the applicant being rehabilitated. Her Honour found special circumstances within s 44(2) the Crimes (Sentencing Procedure) Act in the need to foster this hope of the applicant being rehabilitated 10 In her remarks on sentence her Honour referred to the criminal proceedings which had been brought against the two co-offenders for the same offence. It is unnecessary to deal in detail with the criminal proceedings against the co-offenders or the sentences passed on the co-offenders, because no argument based on the principles of parity or proportionality in sentencing was raised before this Court on behalf of either the applicant or the Crown. There were features about the positions of each of the co-offenders which made it difficult to make any comparison between the sentence passed on the applicant for the offence of robbery in company and the sentences passed on the co-offenders for the same offence. 11 There was only one ground of appeal against sentence, namely, that the sentencing judge erred in failing to give the applicant credit for the time he had spent in rehabilitation. 12 As I have already indicated, the offence was committed on 7 January 2002 and the applicant and the co-offenders were arrested on the same day, shortly after committing the offence. On 8 January 2002 the applicant was granted conditional bail, which included as one of the conditions that the applicant be released into the custody of Major Harmer of The Salvation Army and no one else and go directly to Foster House and reside there until taken to the William Booth Institute and that he reside there until he completed a rehabilitation program conducted at the Institute. Pursuant to this grant of bail the applicant was released on bail. 13 In the proceedings on sentence before her Honour a letter dated 4 April 2002 from Major Harmer of The Salvation Army and a letter dated 24 June 2002 from Mr Fairhall, the Programme Director of Canberra Rehabilitation Services, a rehabilitation service conducted by The Salvation Army, were admitted into evidence. The letter from Major Harmer was in the following terms: "It is with pleasure that I provide the Court with this updated report of Mr Delaney's progress in our Long Term Rehabilitation Program into which I facilitated his entry on the 17th January 2002. Mr Delaney completed Stage one of the program at William Booth Institute, Albion Street, Surry Hills, and was then assessed into Stage two of the Program at our Canberra Centre located at 5 Mildura Street, Fyshwick, ACT. He attends Court from that Centre today. I visited the Canberra Rehabilitation Centre on the 31st of March 2002 and received an update of Bryce Delaney's progress, and also had a personal interview with him on Wednesday 3rd of April 2002. Mr Delaney is doing exceptionally well in the Program and is working hard to overcome some difficulties that he has encountered with the strict discipline expected of Clients who enter the William Booth Program. Young Clients especially have to deal with that antisocial behaviour that is so characteristic of the drug scene from whence they came into the Program, and in this regard Mr Delaney is no exception. The Canberra Staff report that Mr Delaney would benefit from a continuation of his involvement in the Program, and if your Worship was so minded Mr Delaney would be very welcome to continue at the Canberra Centre for a further (5) months, before he is returned to William Booth Institute for Stage three of the Program, which is of (2) months duration. I will be in Court to support Mr Delaney today if I can assist further in this matter." 14 The letter from Mr Fairhall was in the following terms: "The Bridge Program, Canberra is a rehabilitation centre for the treatment of drug, alcohol and gambling problems, operated by The Salvation Army. It draws upon the principles and practices of the Alcoholics Anonymous, Narcotics Anonymous and Gamblers Anonymous programs, and involves both individual, group and work therapy. The program attempts to address not only these abuse issues, but also the related issue of living and dealing with emotions and feelings. In this context, clients are given the opportunity to develop a variety of skills for living, and dealing constructively with the difficulties that ordinary living brings. Bryce is currently in the 3rd week of our 40-week program. So far Bryce has complied with all the requirements of our program and has made some personal progress. He is participating in weekly individual counselling sessions, daily group work, work therapy, attending 12-step meetings on a regular basis, as well as carrying out regular community and housekeeping chores as required. Bryce has undergone a number random drug screens and all have been returned negative. If the Court requires any further information please feel free to contact me on the above telephone number." 15 An affidavit by Major Harmer of 10 November 2003 was filed on behalf of the applicant in support of this application. This affidavit was, of course, not before the sentencing judge but on the hearing of this application the Crown Prosecutor informed the Court that the Crown had no objection to the Court taking the affidavit into account in determining whether the ground of appeal had been established. 16 It appears from Major Harmer's affidavit that the applicant participated in residential programs conducted by The Salvation Army between 8 January 2002 and 10 April 2002, when he was discharged for disciplinary reasons. He was re-admitted to a residential program between 6 May and 19 May 2002, when he discharged himself because of some personality issues between himself and The Salvation Army staff. He was re-admitted to a residential program on 7 June 2002 and he remained in that program until 14 September 2002, that is until shortly before his trial. In his affidavit Major Harmer said that the applicant had spent a total of about six and a half months in residential programs conducted by The Salvation Army. Major Harmer explained that a client of The Salvation Army undergoing a program can be discharged from the program for disciplinary reasons, for what might be considered very minor breaches of the "House Rules", such as repeatedly not getting out of bed on time or not doing the homework required in the course. In his affidavit Major Harmer said that The Salvation Army program is "very strict" and has zero tolerance of any attitude or actions that appear to be associated with a drug-addicted way of life. 17 In the proceedings on sentence it was submitted on behalf of the applicant that in sentencing the applicant her Honour should take into account the periods the applicant had spent in The Salvation Army programs, which were said in the proceedings on sentence to be about nine months. 18 In her remarks on sentence her Honour said at pp 7 to 8: "In submission to the Court reference was made to the report from the William Booth Program which makes it clear that the offender was making good progress. The Court was invited to regard that period in the program, which is a residential program, as reflecting a period of self imposed incarceration which ought to be taken into account in setting the sentence for this offence. It stands to be noted that the offender admitted himself into the program a matter of days after being arrested, charged and released to bail on this offence. One has to wonder whether the offender's motivation to attend so diligently to the program was in part due to the impending trial. However, it would be unduly cynical to conclude that his sole motivation was to create a favourable impression at any sentence hearing. As I have already noted there are prospects favourable to his rehabilitation. I do not, however, propose to take the time in the program into account in setting the sentence." 19 It was submitted before this Court on behalf of the applicant that her Honour had erred in refusing to take into account the periods the applicant had spent in The Salvation Army programs. 20 Counsel for the applicant referred to decisions of this Court in R v Eastway (unreported 19 May 1992) especially at pp 6 to 7 per Hunt CJ at CL; R v Campbell (unreported 12 April 1999) especially per Kirby J at paras 24 and 25; R v Thompson (unreported [2000] 362) especially per James J at par 30. 21 In R v Campbell Kirby J said at par 24: "The last complaint was the failure by his Honour to take account of the time spent by the applicant undergoing rehabilitation. It was appropriate that the applicant should have received recognition and credit for the time spent in rehabilitation. In R v Eastway (CCA, unreported, 19 May 1992), the Court consisting of Gleeson CJ, Hunt CJ at CL and Matthews J, identified the reasons for doing so. The rehabilitation courses are residential. Persons who undergo them are subject to discipline and restrictions. The Court determined, in that case, that the prisoner should be given credit for half the time spent in rehabilitation. In some cases the proportion has been somewhat higher, as high as 75 percent." 22 In my opinion, her Honour did err in refusing to take into account the time which the applicant had spent in The Salvation Army programs. The programs both in Sydney and Canberra were residential programs. In his letter of 4 April 2002 Major Harmer referred to the strict discipline expected of clients who enter the William Booth program and in his affidavit of 10 November 2003 Major Harmer reiterated that The Salvation Army program is very strict. The letter from Mr Fairhall listed the activities comprised in the program in which the applicant was participating, including carrying out regular community and housekeeping chores as required. In my opinion, the conditions of the residential programs in which the applicant was participating amounted to conditions of quasi-custody. 23 If the applicant was participating in programs the conditions of which amounted to conditions of quasi-custody, then the applicant should not, in my opinion, be disentitled from obtaining a credit in sentencing, by reason of the circumstance that part of his motivation for undertaking the programs might have been to create a favourable impression at any sentence hearing. The applicant's motive for undertaking the programs might be relevant in the assessment of the applicant's prospects of rehabilitation but in my view it is not relevant in determining whether he should be entitled to some credit in sentencing, on the basis that he has already undergone a kind of punishment by being subjected to quasi-custody. 24 Nor do I consider that the applicant is disentitled from receiving credit, by reason of the circumstance that he did not complete any program. Once again, whether an applicant completed a program of the kind conducted by The Salvation Army would be relevant in assessing his prospects of rehabilitation. It does not seem to me to be relevant in determining whether he should receive a credit in sentencing by reason of having spent periods of time in conditions of quasi-custody. 25 Both counsel referred us to the decision of the Court of Criminal Appeal in R v Kivits (unreported 4 November 1993). In Kivits the prisoner had spent a period of about 30 weeks in a Salvation Army program and the Court of Criminal Appeal held that he was not entitled to any credit for that period. Allen J, who delivered the principal judgment, held that no credit should be allowed, because for Kivits spending time in a Salvation Army program had been what his Honour described as "a boon". His Honour said that Kivits would have been far happier being fed and housed in the care of The Salvation Army than he would have been if he had remained at liberty in the conditions in which he had been living and the benefits to him from The Salvation Army program more than offset any detriment to him by reason of the restriction of his liberty. 26 I consider that Kivits can be distinguished from the present case. The evidence in the present case does not suggest that the applicant had reached the level of destitution that Kivits had. Not long before he committed the offence the applicant had been living with his mother and he has in fact spent periods living with his mother since the offence was committed. Major Harmer's letter suggests that the applicant did not find the discipline to which he was subjected in The Salvation Army programs entirely to his liking. 27 It was submitted by the Crown that, even if error had been demonstrated, any appeal against sentence should be dismissed on the grounds that no lesser sentence would be warranted (s 6(3) Criminal Appeal Act). The Crown referred to authorities in this Court which have held that the guideline judgment in R v Henry (1999) 46 NSWLR 346 for the offence of armed robbery affords some guidance in sentencing for the offence of robbery in company. It was submitted by the Crown that the present offence of robbery in company was worse than the typical case of armed robbery, described by the Chief Justice in par 162 of his judgment in Henry, in that there had been no plea of guilty and the applicant was not a person with no or little criminal history (and there had been some actual violence). 28 I agree that the sentence passed by her Honour for the offence of robbery in company was fairly lenient. However, I do not consider it to be the case that no less severe sentence would be warranted. In reaching that conclusion I have taken into account, not merely the objective facts of the offence and the subjective circumstances of the applicant to which I have already referred and the total period spent by the applicant in conditions of quasi-custody, but I have also taken into account evidence which has been placed before this Court indicating that since being sentenced the applicant has made very significant steps towards rehabilitation. The applicant has attained a C3 work release classification. He works outside the gaol five days a week; he has obtained employment at a restaurant; he has been assessed as being suitable to undertake an apprenticeship as a chef and he will shortly commence work at the restaurant as an apprentice chef. While in custody the applicant has completed a number of Alcoholics Anonymous and Alcohol and Drug Support Group courses. 29 I would propose that leave to appeal be granted and that the appeal against sentence be allowed. In re-sentencing the applicant I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act. 30 In my opinion, the sentences imposed by her Honour were appropriate sentences to pass, were it not for the omission by her Honour to take into account the periods spent in The Salvation Army rehabilitation programs. The total period spent in these programs was about six and a half months. In my opinion the applicant should be allowed a credit of three months for that period of six and a half months. For the same reasons as the sentencing judge found special circumstances, I would find special circumstances. 31 I would propose the following orders: