R v ROWLEY [2004] NSWCCA 390

New South Wales Court of Criminal Appeal

CITATION : R v ROWLEY [2004] NSWCCA 390 revised - 23/11/2004 HEARING DATE(S) : 29 July 2004 JUDGMENT DATE : 12 November 2004

JUDGMENT OF : Newman AJ DECISION : Appeal dismissed.

CATCHWORDS : Criminal law - sentencing - principles - Drug Court - competency of appeals - constitution of Court of Criminal Appeal Criminal Appeal Act 1912 Drug Court Act 1998 LEGISLATION CITED : Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Crimes Act 1900 CASES CITED : R v Thompson and Houlton (2000) 49 NSWLR 383 R v Simpson [2001] NSWCCA 534 PARTIES : Crown - Respondent Reggi Robert ROWLEY - Applicant FILE NUMBER(S) : CCA 60026/04 COUNSEL : S Kluss - Applicant E Wilkins - Respondent SOLICITORS : S O'OConnor - Applicant S Kavanagh - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT 2002/0207 FILE NUMBER(S) : LOWER COURT Milson DCJ JUDICIAL OFFICER :

- IN THE COURT OF CRIMINAL APPEAL 60026/04

NEWMAN AJ

12 November 2004 REGINA v Reggi Robert ROWLEY Judgment 1 NEWMAN AJ: Following the determination by a collegiate bench of the Court of Criminal Appeal of the jurisdictional questions arising from the appellant's challenge to the sentences passed by his Honour Judge Milson in the Drug Court, it now falls to me to determine such part of the appellant's challenge as falls within s 5AF of the Criminal Appeal Act 1912 2 In its judgment, the Court of Criminal Appeal adopted the Crown's submission that matters, which were the subject of a final sentence pursuant to s 12 of the Drug Act, should be described as category one offences for the purpose of the appeal. It is those matters which I, sitting as a single judge of the Court of Criminal Appeal pursuant to s 5AF, have to determine. 3 Matters with which I am now dealing are dealt with by the Drug Court, pursuant to a scheme of sentencing set up by the Drug Court Act. In relation to these offences the appellant first came before his Honour Judge Milson pursuant to s 7 of the Drug Court Act. That section applies to the conviction and sentencing of a person who has pleaded guilty and has been assessed as suitable to enter a program under that Act. Applying that section, his Honour imposed an initial sentence and suspended execution of that sentence for the duration of the program. Section 11 of that Act provides for the termination of the offender's program either because it has been successfully completed or because the Drug Court is satisfied there is no useful purpose to be served by the offender's further participation in it. The Court then determines a final sentence in accordance with s 12 of the Act. 4 Pursuant to s7 of the Drug Court Act, the appellant appeared for sentence before his Honour Judge Milson in relation to two offences on indictment, three offences on a Form 1 and a summary offence of goods in custody. 5 When the matter was initially before his Honour on 29 October 2002 the appellant pleaded guilty to all matters on the indictment, asking that in relation to the second count on the indictment his Honour take into account three matters on the Form 1. Initially, as I have mentioned, his Honour also dealt on that occasion with a summary matter, namely, goods in custody of a motor vehicle. 6 I turn then to the matters on the indictment. The first count involved the commission of the crime of aggravated break, enter and steal contrary to the provisions of s 112(2) of the Crimes Act 1900. That section stipulates a maximum penalty of 20 years imprisonment for the crime. 7 The second count on the indictment was one of break, enter and steal contrary to the provisions of s 112(1) of the Crimes Act. That section imposes a maximum penalty of 14 years imprisonment. 8 The matters on the Form 1 related to the second count on the indictment. They involved, firstly, the offence of possessing a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 and two matters of goods in custody contrary to the provisions of s 527C(1)(a) of the Crimes Act 1900. The matter of goods in custody which constituted the summary matter carried a maximum penalty of one year imprisonment or ten penalty units, or both, under s 527C(1)(c) of the Crimes Act 1900. 9 I turn then to the facts relating to the various matters on which sentences were passed. First, the count of aggravated break, enter and steal. 10 On the night of 23 June 1998 a female was at home, at her parent's premises, with her boyfriend. They retired to bed at about 11pm on that evening. The next morning the boyfriend could not find his wallet or car keys. A Panasonic compact disc player belonging to the female, some items of jewellery and a Riccho camera, valued at $1,500 were missing. The garage window had been forced, resulting in damage to its window lock. Fingerprints matching those of the appellant were found on the garage window. No property was recovered and compensation in the sum of $1,500 was sought. 11 The second count on the indictment, involving the offence of break, enter and steal occurred at a house which was unoccupied between 13 and 20 August 2002. When the occupants returned they found a bathroom window had been forced and various items had been stolen. They included an electric router and planer, $600 cash and a number of pieces of gold jewellery. The stolen items had an estimated value of $6,000. Again, fingerprints were found by police which matched those of the appellant. 12 The facts relating to the three matters on the Form 1 were as follows. On 22 August 2002 the appellant was observed by police to be in an unregistered car. When the police approached the car they found an unused syringe lying on the passenger's side of the vehicle. When the appellant was searched two bags of cannabis were found in his right hand pocket. The police also found a stolen mobile phone and a library card in the name of a female which had been in her wallet which was stolen on 30 July 2002. 13 The summary matter of goods in custody involved a stolen BMW roadster convertible which police found under a tarpaulin in premises at 41 Caloolah Avenue, Kingswood Park. The car had been reported stolen on 20 February 2002. At the time when the car was stolen its owner's house had been broken into and the car keys were stolen along with other property. The car's key ring, with the car keys, were found inside the appellant's house. 14 In relation to these offences his Honour imposed the following initial sentences :- as to count 1, the crime of aggravated break, enter and steal, he imposed a term of imprisonment of 1 year and 6 months. He also made an order for compensation in the sum of $1,500. 15 In relation to count 2, the matter of break, enter and steal, having taken into account the three matters on the Form 1 to which I have referred, his Honour imposed the sentence of 1 year and 9 months. As to the summary matter of goods in custody his Honour imposed a sentence of imprisonment for 6 months. Then, pursuant to s 7(3) of the Drug Court Act, his Honour suspended these "initial sentences" for the duration of the appellant's Drug Court Program. 16 The appellant remained on the Drug Court Program until 7 May 2003. It was terminated pursuant to s11 of the Drug Court Act on that date. The appellant was then taken into custody on 19 May 2003. 17 He then re-appeared before Judge Milson on 23 January 2003 who then imposed final sentences pursuant to s 12 of the Drug Court Act. 18 In relation to the count of aggravated break, enter and steal he imposed the self-same sentence as he had imposed initially. The sentence of 1 year and 6 months was to date from 19 May 2003 and expire on 18 November 2004, together with an order for compensation for $1,500. 19 Again he imposed a self-same sentence in relation to the count of break, enter and steal, having taken into account the three matters on the Form 1. This time the term of imprisonment of 1 year and 9 months was to date from 19 May 2003 and expire on 18 February 2005. In relation to the summary matter of goods in custody the term of imprisonment was set to date from 19 May 2003, expiring on 18 November of that year. 20 When imposing the initial sentences on 29 October 2002 his Honour stated that, having taken into account the facts to which I have referred, he also took into account the fact that the appellant had pleaded guilty in relation to each of the offences. He took into account the fact that the charge of aggravated break, enter and steal was only recently charged prior to the matter coming before his Honour. The offence, of course, had taken place in June of 1998. His Honour rightly took into account the appellant's long criminal history. His Honour stated that he did not take into account any of those "subjective features which may well exist that would suggest that something other than full-time imprisonment with usual parole and non parole is the appropriate penalty for these offences". His Honour did so because the sentences he imposed were suspended and if the appellant had successfully completed the Drug Court Program, lesser sentences could have been imposed on final sentencing. 21 The first ground of appeal pressed was that his Honour failed to give adequate weight to the appellant's pleas of guilty and contrition. It was argued that his Honour gave little weight to the plea and specifically, that he failed to quantify the utilitarian value. Reliance was placed upon what had fallen from Spigelman CJ in R v Thompson and Houlton (2000) 49 NSWLR 383, particularly paragraphs 52 and 53 where the Chief Justice said :- "The absence of any reference to actual consideration of the guilty plea in the course of sentencing should as a general rule in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations." and "It may not have been entirely clear prior to this judgment that the absence of reference to consideration of a guilty plea in the sentencing process would generally be regarded on appeal as an indication that a relevant consideration had not been given weight. In the course of formulating this guideline, the Court has been asked to determine that such should be regarded as the case in the future. This is designed to overcome the problem that the evidence and submissions before this Court in these proceedings have identified, namely the extent to which practitioners do not accept that a guilty plea, particularly an early plea, is in fact taken into account by sentencing judges. As part of the process of overcoming this perception, the Court should, in my opinion, adopt the approaches generally applicable to decisions on sentencing for State Offences delivered after a reasonable period allowed for the handing down of this judgment" 22 However Spigelman CJ explained the effect of the above passage in R v Simpson [2001] NSWCCA 534 at paragraphs 82 and 83. He said :-