New South Wales Court of Criminal Appeal REGINA v HORTON [2005] NSWCCA 374 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 25 October 2005 JUDGMENT DATE: 25 October 2005 JUDGMENT OF: McClellan CJ at CL at 1; Adams J at 2; Hoeben J at 28 DECISION: Leave to appeal granted; The orders requiring that the applicant be released to parole and the conditions of that release are vacated; Appeal dismissed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 ss 21AD, 50, 51 R v Hathaway [2005] NSWCCA 368 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Ponfield (1999) 48 NSWLR 327 Veen v The Queen (No 2) (1988) 164 CLR 465 Regina PARTIES: v Damien Peter HORTON (Applicant) FILE NUMBER(S): CCA 2005/1173 Mr J Bennett SC (Crown) COUNSEL: Applicant in person S Kavanagh SOLICITORS: Applicant unrrepesented LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0404; 04/11/1191; 04/11/1193 LOWER COURT JUDICIAL OFFICER: Armitage DCJ IN THE COURT OF CRIMINAL APPEAL 05/1173 McCLELLAN CJ AT CL ADAMS J HOEBEN J TUESDAY 25 OCTOBER 2005 REGINA v Damien Peter HORTON JUDGMENT 1 McCLELLAN CJ at CL: I agree. As Adams J pointed out, the question of the relevance of an offender's prior record when being sentenced is a matter that was considered by this Court in R v Hathaway [2005] NSWCCA 368. The central issue is whether or not the moral culpability of an offender, referred to in the joint judgment in Veen V The Queen (No 2) (1988) 164 CLR 465 raises for consideration, in the context of s 22D an offender's prior record when considering the criminality of the offence. 2 As the Chief Justice said in Hathaway, this is an issue that may require resolution but it would be necessary, if this were to occur, to convene a five-person bench. I agree with Adams J that as in Hathaway the issue does not require resolution in this case. I agree with the orders, which his Honour proposes. Accordingly, the orders of the Court will be as indicated by Adams J. 3 ADAMS J: The applicant seeks leave to appeal from sentences imposed in the District Court on 22 December 2004. He pleaded guilty to the following charges: (i) on 26 November 2003, attempted break and enter of premises in Wunda Road, Concord West, with intent to steal; (ii) on 26 November 2003, assaulting Constable Tomlinson, a police officer in the execution of his duty; (iii) on 26 November 2003 assaulting Constable Curteis in the execution of her duty, thereby causing actual bodily harm; (iv) on 26 November 2003, did escape from the lawful custody of Constables Tomlinson and Curteis; (v) on 21 October 2003, breaking and entering premises in Sydney Street, Willoughby and stealing property from the occupants; (vi) on a Form 1, taken into account on offence (iv), possessing an implement of housebreaking at Concord West on 26 November 2003 and breaking and entering premises in Balgowlah on 30 December 2003; and (vii) breaking and entering premises in Ronald Avenue, Greenwich and stealing property from the occupants. 4 The sentences imposed on the applicant were as follows: (i) in respect of offence (vii), a non-parole period of 2 years commencing on 2 February 2004 and expiring on 1 February 2006 and a parole period of 2 years commencing on 2 February 2006 and expiring on 1 February 2008; (ii) in respect of offence (v) and taking into account the offences in (vi), a non-parole period of 2 years commencing on 2 May 2004 and expiring on 1 May 2006 and a parole period commencing on 2 May 2006 and expiring on 1 May 2008; (iii) in respect of offence (i), to a non-parole period of 2 years commencing on 2 August 2004 and expiring on 1 August 2006 and to a parole period of 2 years commencing on 2 August 2006 and expiring on 1 August 2008; (iv) in respect of each of the offences (ii), (iii) and (iv), a fixed term of imprisonment concurrently with the term for offence (i) and (by implication) all commencing on 2 August 2004 and expiring on 1 August 2005. 5 It will be seen that the overall sentence imposed on the applicant was 4 years and 6 months from 2 February 2004 with a non-parole period of 2 years and 6 months. The learned sentencing judge ordered that the applicant be released on parole on 2 August 2006 and subject to the following conditions: (i) he be supervised by the Probation and Parole Service of the New South Wales or whatever other State or Territory he inhabits for the entire period of his parole from 2 August 2006 until 1 August 2008; (ii) he obey the reasonable directions of the supervising Probation and Parole Service; (iii) he be of good behaviour; (iv) the supervising Probation and Parole Service arrange for him a suitable non-religious drug and alcohol residential rehabilitation program and psychological counselling by a registered psychologist; and (v) he obey all reasonable directions of those conducting such programs. 6 The facts underlying the charges were not controversial and were set out at length in the judgment below. Briefly, on 26 November 2003 the applicant was seen by two police constables shortly after he had smashed a window in the front of a house in Wanda Road with a small glass-breaking hammer. Following brief questions, the constables placed him under arrest. An extensive struggle took place in the course of which Constable Curteis suffered pain, bruising and redness to the side of her head caused when the applicant pushed her head into a tree in a determined effort to escape. Eventually the applicant managed to escape with the help of an unidentified person, who came to the scene in a vehicle. I interpolate that, in my view, the applicant was indeed fortunate to have received in respect of this criminal behaviour sentences that were concurrent with the offence of attempted breaking and entering, a course to which, it is surprising to see, the prosecutor made no opposing submission. It seems to me that the circumstances of his resisting the police and escaping were significant aggravating features of the crime of attempted breaking and entering and warranted some accumulation. 7 During daylight hours on 21 November 2003 the applicant broke into premises in Sydney Street, Willoughby by smashing a glass panel on the back door and opening the lock from the inside. A number of items valued at about $13,000 were stolen, including a lap-top computer and jewellery. The applicant was identified by DNA he had left at the scene. None of the stolen property was recovered. The Form 1 offences involved the glass-breaking hammer earlier referred to and a breaking, entering and stealing (of a video recorder) at Balgowlah on 30 December 2003. 8 The Greenwich offence was also committed in the daylight hours of 4 November 2003. Entry was gained by breaking the rear glass door, the house was ransacked and items, including jewellery, were stolen. None of this property, valued at about $680, has been recovered. The applicant was identified from his DNA found at the scene. 9 The learned sentencing judge accurately summarised the applicant's criminal record as "very extensive and mostly in respect of offences of dishonesty" together with several offences of assaulting police and resisting arrest. He was almost 33 years of age as at the time of the present offences. 10 As has been mentioned, the applicant pleaded guilty. The chronology of the procedures in the courts as affecting this case is a little complicated but nothing turns on this. The utilitarian discount of 20 per cent allowed by his Honour was clearly appropriate. Certainly there was no error in not giving a larger discount. 11 The applicant, who was competently represented below, did not give evidence in the sentence proceedings. Amongst other papers, a psychologist's report and a Probation and Parole report were tendered. Both were unremarkable, linking most of the applicant's criminal career to heroin addiction and the abuse of other drugs. His past participation in drug rehabilitation programs - as may be surmised from his record - had not been successful, a failure he apparently attributes in some part to the religious context in which those programs were undertaken. No doubt this feature explains the orders made by the learned sentencing judge as to the nature of the program to which he might be referred on parole. 12 The applicant told the psychologist that he had suffered severe, chronic pain for many years caused by gallstones and that he also used heroin as an analgesic for this condition. It appears that his Honour accepted this as, at least, partly explanatory of the applicant's heroin use. The psychologist concluded that, as the applicant had been drug-free in the prison environment "for a comparatively significant period of time", his acknowledgment of guilt reflected "developing insight and associated remorse for his behaviour", his successful involvement in a number of prison drug awareness programs, improved health following gallbladder surgery, a stable relationship with his partner and a desire to move from Sydney to Tasmania meant "his clinical and forensic prognosis will be greatly improved." 13 The report of the Probation and Parole Officer was, it seemed to me, somewhat more grounded in reality. The report is based on a wider range of information than that available to the psychologist. Among other things, the report noted that the applicant had no contact with the drug and alcohol counsellor and that custodial case management records indicated that he has "on occasions been hostile and aggressive towards clinic staff." I might point out that the crucial point may be not so much that the applicant had no contact with the custodial drug and alcohol counsellor but whether he sought such contact. It appears that he did seek such contact for at least a period but was unsuccessful, no doubt because of the unfortunate exigencies of the prison arrangements for remand prisoners. . 14 The report of the Probation and Parole Officer concluded, with some justice: "Mr Horton has a lengthy history of violent and drug related offending. Periods of supervision by this Service appear to have been limited by Mr Horton's resistance to treatment, and his poor attitude. He is assessed as in need of ongoing intensive psychological counselling and would benefit from a residential rehabilitation program to address his serious drug dependency. Unfortunately, he has not previously shown any motivation or commitment to address his drug and alcohol abuse and has continued to engage in criminal activity to support his addiction." 15 The learned sentencing judge gave considerable weight to the fact that the applicant had not failed any urine test whilst in custody, in marked contrast to the results during his previous term of incarceration. His Honour concluded that the matters disclosed before him "suggest that (the applicant's) prospects of rehabilitation, despite his considerable record, are not inconsiderable." Although a generous assessment, I would certainly not be prepared to dissent from it. 16 Otherwise the learned sentencing judge referred appropriately, if I may respectfully say so, to the relevant provisions of the Crimes (Sentencing Procedure) Act 1999, with one exception to which it will be necessary to return, and applied the guideline judgments of this Court in R v Ponfield (1999) 48 NSWLR 327 and R v Henry (1999) 46 NSWLR 346. It is not necessary to deal with these aspects in detail. 17 It is obvious the structure of the sentences reflects a careful assessment of the question of accumulation and totality. Again, it shows that a marked degree of leniency was extended to the applicant. In saying this, of course, I am not at all suggesting any criticism of the learned judge's approach or conclusions. I would also agree, if I may respectfully say so, given the learned sentencing judge's conclusions as to the prospects of rehabilitation, (though possibly optimistic) that special circumstances were present justifying the variation of the statutory ratio. The grounds of appeal 18 The applicant is unrepresented in this Court. The notice of appeal discloses but one ground, namely severity. This was filed out of time but, in the circumstances, including the Crown's not objecting to the grant, I would give the applicant leave to appeal out of time. The applicant has provided brief written submissions. His complaints, as I apprehend them, are as follows: 1. He was very harshly punished considering that he had not appeared in the District Court for 14 years. 2. The conditions of parole were not warranted as the applicant is being rehabilitated in custody and they will hinder his plan to move out of Sydney. 3. In comparison with other sentences, the sentences imposed were harsh. 4. None of the offences were committed whilst on conditional liberty. 5. The sentences should have been wholly concurrent. As to complaint 1: 19 It is correct in that the applicant was last before the District Court on 6 September 1991 when he was sentenced for the offences of having sexual intercourse without consent and assault occasioning actual bodily harm. He was sentenced to concurrent sentences yielding an overall term of four years with a minimum term of three years. The sentences were varied on appeal to this Court by a reduction of the minimum term to two years. Since his release, however, the applicant was convicted twice of violence towards police doing their duty, offences connected with the theft of motor vehicles, possession of housebreaking implements and larceny. 20 There is no reason for supposing that the learned sentencing judge misunderstood the applicant's record, gave it unfair or undue weight, or did not appropriately assess its individual elements. This complaint is without foundation. An associated complaint is made by the applicant orally before this Court and refers to the observation by his Honour in dealing with a factor to which s 21AD of the Crimes (Sentencing Procedure) Act 1999 refers, as follows: "The Crown suggested that sub-paragraph (d) applies in respect of all matters, because the offender has a record of prior convictions. That is indeed so, and the offender in fact has prior convictions in relation to assaulting police and breaking, entering, and stealing, a circumstance of aggravation in the present case to a considerable degree." 21 The extent to which prior offences are indeed aggravating circumstances is a matter of some difficulty, last discussed so far as I am aware by this Court in R v Hathaway [2005] NSWCCA 368. It is not necessary, fortunately, for me to consider the propriety of the learned sentencing judge's observation quoted above since I have formed the view that even if his Honour regarded this as an aggravating circumstance, and even if this be a mistaken application of the sub-paragraph, it would not affect the outcome of this appeal. As to complaint 2: 22 It seems that the learned sentencing judge in imposing the conditions of parole to which I have adverted, purported to act pursuant to the requirements of s 50 and the powers under s 51 of the Crimes (Sentencing Procedure) Act 1999. With respect, it is clear that his Honour was mistaken in so doing. These were sentences that were greater than three years' duration and, accordingly, his Honour had no power to make the orders. 23 For obvious reasons there must be some arbitrary line in distinguishing between the cases and there comes a time (fixed at three years) when it is inappropriate that this Court should make orders in advance concerning the supervision of an offender when released to parole as distinct from the Parole Board exercising its view of the matter having regard to the information about the offender then available to it. 24 In this case it seems to be clear that the appropriate course is simply to vacate the orders made by his Honour, which will leave the terms of parole, when and if granted, to the judgment of the Parole Board. As to complaint 3: 25 This concerns the applicant's plans to move out of Sydney being hindered by the parole conditions and, I think, it is dealt with by the proposed order vacating his Honour's conditions upon parole. 26 The last three complaints are general in nature. The brief account of the facts contained above shows that the sentences imposed by his Honour not only individually but also in their very extensive concurrency, were well within the sentencing discretion reposed in the learned sentencing judge and I can see no error in this respect. As to complaint 5: 27 The applicant pointed out that the crimes were not committed whilst he was on conditional liberty. That is true, but he had only just been released from prison for some six months when he commenced his criminal behaviour. It seems clear that he would have continued that behaviour until he was eventually arrested and dealt with because of the addiction to which he was regrettably subject at the time. He was not dealt with by his Honour on the basis that he was in breach of parole, bail or a bond. If he had been subject to such limitations on his conduct I would not doubt but that the sentences would and ought to have been heavier than, in the result, they were. 28 The consequence is that none of the complaints made by the applicant are made out. Accordingly I would propose that leave to appeal be granted and the orders requiring the applicant be released to parole and the conditions of that release be vacated but otherwise the appeal be dismissed. 29 HOEBEN J: I agree with the orders proposed by Adams J. ********** 06/02/2006 - - Paragraph(s) 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. 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