REGINA v VAN DE HAAR [2006] NSWCCA 251

New South Wales Court of Criminal Appeal

CITATION: REGINA v VAN DE HAAR [2006] NSWCCA 251 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31 January 2006

JUDGMENT DATE: 17 August 2006

JUDGMENT OF: Sully J at 1; Adams J at 2

DECISION: Leave to appeal granted, the sentence on count 8 should be varied to commence on 8 January 2007 but that otherwise the appeal should be dismissed.

CATCHWORDS: Sentence appeal - no question of law raised

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Way [2004] NSWCCA 131 at [176]; 60 NSWLR 168 at 199

Regina

PARTIES: v

Dean Allan VAN DE HAAR (Applicant)

FILE NUMBER(S): CCA 2005/2018

COUNSEL: Mr P Barrett (Crown) Mr C Smith (Applicant)

SOLICITORS: S Kavanagh (Crown) S E O'Connor (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/41/0229

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 2005/2018

SULLY J ADAMS J

17 AUGUST 2006 REGINA v Dean Allan VAN DE HAAR Judgment

1 SULLY J: I agree with Adams J. 2 ADAMS J: The applicant, Dean Allan Van De Haar, seeks leave to appeal from sentences imposed upon him by the District Court on 3 March 2004. He was charged as follows – "Counts 1-3: Break and enter with intent to steal contrary to s 113(1) of the Crimes Act 1900, carrying a maximum penalty of ten years' imprisonment: 1 between 24 and 25 February 2004; 2 10 April 2004; and 3 between 28 June and 1 July 2002. Counts 4-7: Break enter and steal contrary to s 112(1) of the Crimes Act 1900 carrying a maximum penalty of fourteen years' imprisonment: 4 between 27-29 September 2003; 5 between 24-26 October 2003; 6 18 October 2001; and 7 between 3-5 April 2004. Count 8: Threaten to use an offensive weapon (syringe) to prevent lawful apprehension committed on 9 June 2004, an offence under s 33B(1)(a) of the Crimes Act 1900, carrying a maximum penalty of twelve years' imprisonment. Form 1 offences occurring on 9 July 2004, taken into account on count 8: 1 resist police officer in the execution of his duty; 2 assault police officer; and 3 possess prohibited drug (methylamphetamine). 3 The applicant pleaded guilty to the offence in count 8 on 3 November 2004 and to all other counts on 22 December 2004. He was sentenced as follows – Count 1: Imprisonment for two years expiring on 2 March 2007 with a non-parole period of eighteen months commencing 3 March 2005 and expiring on 2 September 2006; Count 2: Imprisonment for two years expiring on 2 May 2007 with a non-parole period of eighteen months commencing on 3 May 2005 and expiring on 2 November 2006; Count 3: Imprisonment for two years expiring on 2 July 2007 with a non-parole period commencing on 3 July 2005 and expiring on 2 January 2007; Count 4: Imprisonment for two years expiring on 2 September 2007 with a non-parole period of eighteen months commencing on 3 September 2005 and expiring on 2 March 2007; Count 5: Imprisonment for two years expiring on 2 November 2007 with a non-parole period of eighteen months commencing on 3 November 2005 and expiring on 2 March 2007; Count 6: Imprisonment for two years expiring on 2 January 2008 with a non-parole period of eighteen months commencing on 3 January 2006 and expiring on 2 July 2007; Count 7: Imprisonment for two years expiring on 2 March 2008 with a non-parole period commencing on 3 March 2006 and expiring on 2 September 2007; Count 8: Imprisonment for three years with a non-parole period of eighteen months commencing on 3 February 2007 and expiring on 2 August 2008. 4 The consequence of these sentences was the imposition of an overall sentence of five years six months and twenty-five days with a non-parole period of four years and twenty-five days. 5 The learned sentencing judge found that special circumstances existed justifying a variation of the statutory ratio arising from the partial accumulation of the sentences and adjusted the sentence he imposed on count 8 to produce an accumulated non-parole period representing 74% of the effective overall sentence. 6 It is important to note that the sentence imposed on count 1 commenced on the date of sentencing, namely 3 March 2005. At that time the applicant was serving a term of imprisonment of two years commencing 9 July 2004 with a non-parole period of eighteen months. It follows that the applicant was given the benefit of a significant degree of concurrency in respect of the sentence being served at the time of the commencement of the period of imprisonment imposed on the current offences. 7 A number of other significant matters should be noted. The offence in count 4 was committed while the applicant was on parole after serving the non-parole period of a home detention order for other unrelated break, enter and steal offences. Counts 1, 2 and 7 were committed whilst the applicant was on bail for another break, enter and steal offence. Following his commission of those offences (respectively on 24-25 February, 10 April and 3-5 April 2004) the applicant failed to appear at Wollongong Local Court on 5 May 2004. A first instance warrant was issued for his arrest. When police attempted to execute this warrant on 9 June 2004, the offence in count 8 was committed. The applicant was arrested one month later on 9 July 2004 on the count 8 offence pursuant to the warrant. Not surprisingly, further bail was refused and he was in continuous custody since that date. The term of imprisonment to which I have already referred which had been imposed prior to the applicant's being sentenced on the current offences commenced on that date, namely 9 July 2004.