New South Wales Court of Criminal Appeal CITATION: R v Henare [2005] NSWCCA 366 HEARING DATE(S): 27/10/2005 JUDGMENT DATE: 10 November 2005 JUDGMENT OF: Hoeben J at 1 DECISION: Appeal dismissed. CATCHWORDS: Appeal from final sentences imposed by Drug Court - sentencing principles - utilitarian value of plea of guilty - weight to be given to subjective factors. Crimes Act, 1900 LEGISLATION CITED: Criminal Appeal Act, 1912 Drug Court Act, 1998 R v Simpson [2001] NSWCCA 534 CASES CITED: R v Sutton [2004] NSWCCA 225 R v Thomson and Houlton (2000) 49 NSWLR 383 Lucas Jai Henare - Appellant PARTIES: Crown - Respondent FILE NUMBER(S): CCA 1316/2005 H Dhanji - Appellant COUNSEL: PG Ingram - Respondent SEO'Connor, Legal Aid Commission of NSW - Appellant SOLICITORS: S Kavanagh - Solicitor for Public Prosecutions - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2003/0211 LOWER COURT JUDICIAL OFFICER: Dive DCJ IN THE COURT OF CRIMINAL APPEAL 1316/2005 HOEBEN J Thursday, 10 November, 2005 REGINA v Lucas Jai HENARE Judgment 1 HOEBEN J: This appeal is brought pursuant to s5AF of the Criminal Appeal Act 1912 to a single Judge of the Court sitting as the Court of Criminal Appeal. The appellant appeals against sentences imposed on him in the Drug Court on 24 November 2004 pursuant to s12 of the Drug Court Act (the Act). These were final sentences in accordance with the Act. 2 Before proceeding further, it is useful to set out the legislative framework of the Act. The matters which have come before me pursuant to s5AF of the Criminal Appeal Act were dealt with by the Drug Court pursuant to a scheme of sentencing set up by the Act. In relation to these offences the appellant first came before his Honour Judge Barnett DCJ pursuant to s7 of the 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 the Act. Applying that section, his Honour imposed initial sentences and suspended execution of those sentences for the duration of the program. Section 11 provides for the termination of the offender's program either because it has been successfully completed or because the Drug Court is satisfied that there is no useful purpose to be served by the offender's further participation in it. The Drug Court then determines a final sentence in accordance with s12 of the Act. Offences and sentence 3 On 20 May 2003 initial sentences were imposed on the appellant by Judge Barnett DCJ in the Drug Court in relation to a number of matters. The more serious matters were dealt with on indictment while the other matters were dealt with summarily. Each of the sentences was then, pursuant to s7 of the Act, immediately suspended upon the appellant entering the Drug Court program. 4 The matters for which the applicant was sentenced were: (i) 7 December 2002 - one offence of break and enter with intent to steal. (ii) 7 December 2002 – two offences of break enter and steal. (iii) 7 December 2002 – steal motor vehicle. (iv) 15 February 2003 – offence of self-administer prohibited drug. (v) 16 February 2003 – two offences of negligent driving. (vi) 16 February 2003 – offences of being an unlicensed driver, fail to give particulars and not stop at a red light. (vii) 16 February 2003 – steal motor vehicle. 5 The initial sentences comprised financial penalties for the summary offence matters, imprisonment for 1 year for each of the steal motor vehicle offences and in respect of the offences of break enter and steal and break and enter with intent to steal, in each case a sentence of 2 years 7 months and 1 week, all sentences to be served concurrently. The unusual length of the sentences in respect of the break and enter offences was because the appellant had already spent 4 months and 3 weeks in custody at the time when the initial sentences were imposed. Those sentences should therefore be seen as imprisonment for 3 years before credit was given for time already spent in custody. 6 On 24 November 2004 the appellant was dealt with by Judge Dive DCJ sitting in the Drug Court. In the matters for which suspended sentences were originally imposed, his Honour imposed final sentences pursuant to s12 of the Act. In respect of the summary offence matters his Honour confirmed the financial penalties imposed in the initial sentences. In respect to the matters on indictment, his Honour imposed fixed terms of imprisonment of 9 months for each of the offences of steal motor vehicle and sentences of 2 years and 2 months with a non-parole period of 1 year and 7 months for each of the offences of break and enter with intent to steal and break enter and steal. 7 All sentences were ordered to commence on 31 January 2004. Matters of possession of housebreaking implements (s114 Crimes Act) and possession of housebreaking implements having previously been convicted of an indictable offence (s115 Crimes Act) were taken into account on a Form 1 when his Honour passed sentence on one of the break enter and steal matters committed on 7 December 2002. Allowing for the time spent in custody and 44 days of sanctions whilst on the Drug Court program the effect of those sentences was a head sentence of 2 years 8 months and 1 week. 8 The following table, which was provided by counsel for the appellant, helpfully sets out the offences, the date on which they were committed, whether the offences were dealt with on indictment or summarily and the initial and final sentences: Offence Offence date S/I Initial (s7) 20/5/03 Final (s12/ s24) 24/11/04 1 Break and enter with intent to steal 7/12/02 I 2yrs 7 months 1 week 2 yrs 2 months/1 yr 7 months 2 Break enter steal 7/12/02 I 2 yrs 7 months 1 week 2 yrs 2 months/1 yr 7 months 3 Break enter steal 7/12/02 I 2 yrs 7 months 1 week 2 yrs 2 months/1 yr 7 months 4 Steal motor vehicle (s154A, Crimes Act). 7/12/02 S 1 year 9 months fixed 5 Negligent driving 16/2/03 S $100 $100 6 Unlicensed driver 16/2/03 S $100 $100 7 Fail to give particulars 16/2/03 S $100 $100 8 Negligent driving 16/2/03 S $100 $100 9 Not stop at red light 16/2/03 S $100 $100 10 Self administer prohibited drug 15/2/03 S Rising of the court - 11 Steal motor vehicle (s154A, Crimes Act). 16/2/03 S 1 year 9 months fixed Factual background 9 After the suspension of the initial sentences on 20 May 2003 the appellant entered the Drug Court program. The appellant remained in the program at liberty, apart from a total period of 44 days served as sanctions, until his arrest on 31 January 2004. This arrest was occasioned by a fresh offence of aggravated break and enter with intent to steal (committed on 29 January 2004). The appellant remained in custody from 31 January 2004. On 4 May 2004 the appellant's participation in the Drug Court program was terminated pursuant to s11 of the Act. The matter was adjourned for sentence in relation to the previously suspended sentences and a number of fresh matters including the aggravated break and enter with intent to steal. As indicated the final sentences were imposed by Judge Dive DCJ sitting in the Drug Court on 24 November 2004. 10 When imposing those final sentences, his Honour incorporated into his judgment the Statement of Facts by Judge Barnett DCJ. The most serious matters were the three break and enter matters which occurred on 7 December 2002. 11 They comprised a break and enter at 4 Currawong Street, Ingleburn. When the victim returned home he found that the front door of his premises had been forced open, the interior had been ransacked and a significant amount of property had been stolen including jewellery, a television set and a variety of keys. 12 On the same day there was an attempted break and enter at premises 18 Currawong Street, Ingleburn. A neighbour disturbed the appellant and another person after a security door had been jemmied open. 13 The third of those matters was a break and enter at 21 Lucas Road, East Hills. The victim found that his front door had been forced open. The locking mechanism had been smashed and the door was hanging from the wall. A large amount of property was stolen, the value of which was in excess of $15,000. 14 Those three offences occurred whilst the appellant was on conditional liberty, having been released on parole on 7 May 2002 in relation to other offences. The offences on 16 February 2003 occurred not only while the appellant was on parole, but while he was on bail in respect of the 7 December 2002 break and enter offences. Remarks on sentence 15 When imposing the final sentences it was necessary for his Honour to comply with the terms of s12 of the Act: "12(1) On terminating a drug offender's program, the Drug Court must reconsider the drug offender's initial sentence. (2) 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 (ii) under the conditions of the program arising under s8A; (3) After considering a drug offender's initial sentence, the Drug Court is to determine the drug offender's final sentence: (a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the original sentence related or (b) By making an order confirming the original sentence. (4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence." 16 His Honour referred to the practice of the Drug Court as follows: "It has been the practice of the Drug Court to reflect the objective aggravating and mitigating circumstances of offences at initial sentence. Subjective matters, together with the evidence of rehabilitation achieved on program, were then deferred for consideration on final sentence." 17 In relation to the appellant's plea of guilty his Honour said: "I note that Barnett J did not specifically refer to the plea of guilty or the utilitarian value of that plea in his remarks on initial sentence. That is a factor which I will bear in mind in determining final sentences, however I do note that a plea of guilty is part of any consideration of the determination of an initial sentence in this Court, given the manner in which participants are referred." His Honour again referred to the appellant's plea of guilty when summarising the factors which he took into account in imposing the final sentences (ROS 9.8). 18 His Honour had specific regard to the appellant's poor criminal record and the aggravating circumstances that the matters on the indictment were committed whilst on conditional liberty. In relation to the objective seriousness of the offences, his Honour also had regard to the quantum of the property stolen and its nature, ie personal effects and jewellery. In relation to the appellant's participation in the Drug Court program, his Honour noted that the appellant's participation had occurred between 20 May 2003 and late January 2004. Although the appellant had some good weeks in October and early November 2003, his performance on the program generally was poor. The appellant had continued to use drugs whilst on the program and this had led to 44 days of sanctions. The appellant had been unable to achieve any significant periods of abstinence from drugs. His Honour did not think that the appellant had achieved very much as a result of participating in the Drug Court program. 19 Because of the appellant's history of previous similar offences and a previous custodial sentence, his Honour had specific regard to both general and particular deterrence. His Honour found that there was a need to protect the community from the appellant because of his history of recidivism in relation to break and enter offences. 20 His Honour also had regard to the following subjective matters. The appellant was born on 16 June 1982 and was twenty at the time of the offences. He was twenty two at the time of sentence. The appellant had been introduced to cannabis at the age of thirteen by his older half-brother, and at the age of fifteen that same brother had introduced him to heroin which they began using together on a daily basis. By the age of twenty the appellant was using LSD and ice regularly and that pattern had continued until his incarceration in January 2004. 21 His Honour found that the appellant's offences were committed to finance his escalating drug addictions. Although the appellant had failed to obtain any benefit from his attendance on the Drug Court program, during his most recent period of imprisonment he had been participating in groups within gaol with the relapse prevention program and had displayed a commitment and an ability to look at and take responsibility for the consequences of his negative and destructive choices. 22 His Honour summarised his conclusions as follows: "Taking into account all of the above considerations including his plea of guilty, his criminal record, the forty four days spent in custody serving sanctions, his small gains on the Drug Court program, his youth and the expectation of rehabilitation which must be maintained for someone who is only a very young man of twenty two years of age, …" His Honour then imposed the sentences previously referred to. Grounds of appeal Ground 1 – the learned sentencing judge erred in failing to properly discount the appellant's sentence for the utilitarian value of his plea of guilty 23 The appellant submitted that the failure by Judge Barnett DCJ to make any reference to the appellant's plea of guilty and the acceptance of that approach by Judge Dive DCJ, offended the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383 and was contrary to the statements of principle in R v Sutton [2004] NSWCCA 225. 24 The appellant submitted that: "If his Honour proceeded on the assumption that Barnett DCJ had already allowed a discount, he was wrong to do so … It is submitted that the sentencing judge's remarks in the present matter reveal error in the failure to indicate that the plea of guilty was taken into account. At the least it is submitted that error warranting intervention is established by the lack of transparency in the sentencing remarks." 25 What needs to be kept in mind is that this appeal is from the final judgment of Judge Dive DCJ not the initial judgment of Judge Barnett DCJ. It is clear from the passage of his Honour quoted (para 17) that Judge Dive DCJ was of the opinion that although Judge Barnett DCJ had not specifically referred to a discount for the utilitarian value of the plea of guilty, he had clearly taken it into account in his initial sentence. In my opinion his Honour was entitled to form that opinion. If the initial sentence of 3 years (which was in the nature of a head sentence) took into account the objective criminality of the offences, having regard to mitigating and aggravating factors but did not have regard to such matters as rehabilitation and subjective considerations, a further discount of 25% to have regard to the utilitarian value of the plea of guilty would have produced a sentence which was manifestly inadequate. That is clear from the circumstances of the offences with their aggravating features. 26 While it is desirable for the precise discount allowed for the utilitarian value of a plea of guilty to be articulated, it is not an error to fail to do so. In R v Simpson [2001] NSWCCA 534 at [82] and [83], Spigelman CJ explaining Thomson and Houlton said: "[82] In Thomson and Houlton this Court encouraged sentencing judges to quantify the utilitarian value of the discount given for the plea, in order to serve the broader interests of the administration of criminal justice discussed in that case: "Sentencing judges are encouraged to quantify the effect of the plea on the sentencing insofar as they believe it appropriate to do so." [83] His Honour's failure to quantify the discount does not constitute an error. There is no reason to believe that his Honour failed to give appropriate weight to the plea. The sentences imposed are, in my opinion, entirely appropriate." 27 With respect I am of the opinion that the same approach is appropriate in this case. Judge Dive DCJ clearly had regard to the utilitarian value of the plea of guilty and specifically referred to it. He plainly was of the opinion that an appropriate discount for that factor had already been allowed by Judge Barnett DCJ. Not only was that conclusion open to him, but it was compelled when one looked at the initial sentence imposed by Judge Barnett DCJ against the background of the objective criminality and aggravating features of the indictable offences. 28 No error has been revealed in the approach of Dive DCJ to this question and this ground of appeal is not made out. Ground of Appeal 2 – the sentencing judge erred in failing to have proper regard to the appellant's subjective case. 29 The appellant submitted that his Honour had failed to have adequate regard to his powerful subjective case. In particular his Honour had not had adequate regard to the age of the appellant when the offences were committed, his drug addiction and the unfortunate circumstances in which he had been introduced to drugs by his older half-brother. It was also submitted that adequate consideration had not been given to the appellant's participation, albeit of an unsatisfactory kind, in the Drug Court program. 30 The weight to be given to such matters as an offender's subjective case and participation in the Drug Court program, is essentially a discretionary matter for the sentencing judge. In this case the final head sentences imposed were less by 3 months and 3 weeks than the initial sentences. This involved a discount of approximately 9½ %. That reduction clearly represented his Honour's assessment of both the appellant's subjective case and the matters to be taken into account under s12, in particular his participation in the Drug Court program. 31 His Honour clearly had regard to those matters and took them into account. Nothing has been submitted on behalf of the appellant which would indicate that his Honour's discretion miscarried when reducing the initial sentence by 3 months and 3 weeks. On the contrary, given the objective criminality involved in the offences with their aggravating features, the final sentences imposed by his Honour were towards the bottom end of the range of sentencing options available. In my view his Honour gave to the appellant an appropriate reduction from the sentence which he would otherwise have been entitled to pass in relation to these offences. 32 No error has been revealed in his Honour's approach to the appellant's subjective case and this ground of appeal has not been made out. 33 Accordingly, the order of the Court is that the appeal is dismissed. ********** 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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