New South Wales Court of Criminal Appeal CITATION: Symonds v Regina [2007] NSWCCA 282 HEARING DATE(S): 10 September 2007 JUDGMENT DATE: 24 September 2007 JUDGMENT OF: Mason P at 1; Adams J at 2; Smart AJ at 3 DECISION: Leave to appeal against sentence granted. Appeal against sentence dismissed. CATCHWORDS: Multiplicity of offences - Drug Court terminates program - judge considers special circumstances - accumulation of sentences - statutory ratio observed - moderate sentences adequately reflect subjective features - avoidance of "double counting" - further reductions in non-parole periods not warranted LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 44 CASES CITED: R v Henry [2004] NSWCCA 306 PARTIES: Brendon Lee Symonds v Regina FILE NUMBER(S): CCA 2006/00005035 CCAP COUNSEL: (A) A Francis (C) M L Barr SOLICITORS: (A) S E O'Connor (C) S Kavanagh LOWER COURT JURISDICTION: Drug Court LOWER COURT FILE NUMBER(S): 2005/0145 LOWER COURT JUDICIAL OFFICER: Senior Judge Dive LOWER COURT DATE OF DECISION: 7 August 2006 IN THE COURT OF CRIMINAL APPEAL 2006/00005035/CCAP MASON P ADAMS J SMART AJ Monday 24 September 2007 Brendon Lee Symonds v Regina JUDGMENT 1 MASON P: I agree with Smart AJ. 2 ADAMS J: I agree with Smart AJ. 3 SMART AJ: Brendon Lee Symonds seeks leave to appeal and thereafter to appeal against these sentences imposed on him on 7 August 2006 in the Drug Court on final hearing: Count Offence & Maximum imprisonment Date of Offence Sentence 1 Drive conveyance taken without consent of Owner (on summary disposal – imprisonment for 2 years) 30/6/05 Fixed term of 3 months 8/3/06 – 7/6/06 2 Exceed speed limit by more than 15kph and less than 30 (Fine) 30/6/05 Rising of Court 3 Drive unlicensed 30/6/05 Rising of Court 4 Use unregistered vehicle on road 5/5/05 Rising of Court (Fine) 5 Use uninsured motor vehicle 5/5/05 Rising of Court (Fine) 6 Never licensed person drive vehicle on road 5/5/05 Fixed term of 2 months (18 months imprisonment) 8/3/06-7/5/06 Break enter & steal 7. (on summary disposal- 7/7/05 NPP 7 months 8/6/06-7/1/07 with total term of 11 months imprisonment for 2 years) 8. Resist or hinder police officer in execution of duty - 22/2/06 Fixed term of 14 days from (on summary disposal - imprisonment for 2 years) 8/1/07 to 21/1/07 9 Use offensive language in/near public place/school 22/2/06 Rising of Court 10 Break enter & steal 24/5/06 NPP of 18 months 8/1/07-7/7/08 with (14 years imprisonment) total term of 2 years 4 months 11 Goods in custody 3/4/06 Fixed term of 2 months (6 months imprisonment) 8/1/07-7/3/07 4 The applicant was arrested on 30 June 2005 in relation to Counts 1, 2 and 3 and released on conditional bail. On 7 July 2005 he was arrested in relation to Count 7 when bail was refused. He remained in custody for 28 days until he entered the Drug Court program on 4 August 2005. On 24 May 2006 the applicant was arrested in relation to Count 10 and bail was refused. Between the start of the Drug Court Program and its termination on 21 June 2006 the applicant served a total of 49 days of sanctions. The applicant was in custody from 21 June 2006 to the date of sentence, namely 7 August 2006. 5 At the sentencing hearing it was agreed that the total time the applicant had spent in custody was 147 days and that taking this into account the correct starting date of the sentences was 8 March 2006. The judge adopted that date as the starting date. This explains the back date from 7 August 2006 to 8 March 2006. 6 The sentences imposed resulted in total non-parole periods and fixed terms of 28 months and total sentences of 38 months. The sentence on Count 10 starts on the expiry of the non-parole period on Count 7 and subsumes the 4 months balance of term on Count 7. 7 The one ground of appeal reads: 1. The sentencing judge erred in failing to consider the operation of special circumstances which were warranted in the applicant's case. 8 The judge approached the sentencing task on the basis that there were three key sentences as set out above, that they should be cumulative as they represented different episodes of criminality and that the sentences for the other offences, which were of lesser seriousness, should be concurrent. Facts 9 On 30 June 2005 the applicant was stopped when driving a motor vehicle in Quaker's Hill. The motor vehicle was taken without the owner's consent and the applicant was not licensed to drive. He was also speeding (Counts 1-3). 10 On 5 May 2005 on Sunnyholt Road, Blacktown the applicant drove while unlicensed and the vehicle was unregistered and uninsured (Counts 4-6) 11 On 7 July 2005 at Wentworthville a security screen door and a front wooden door of residential premises were forced and the applicant went through a number of rooms. A DVD player and surround system, a digital video recorder, many items of clothing and one CD were all put in a large bag belonging to the victim. As the applicant left he was confronted by the victim who had just returned home. There was a chase. Eventually, with police assistance, the applicant was apprehended. It is assumed that the property taken was recovered. The applicant was on bail at the time of this offence. 12 On 22 February 2006 in the Church Street Mall area of Parramatta the applicant walked into a discussion/investigation involving the police and another person, pushed that person away from the police and behaved aggressively including making some offensive remarks (Counts 8 and 9). He was convicted in his absence. 13 On 3 April 2006 a mountain bike was taken from the Bike Barn at Liverpool where it was on consignment to be sold. The owner of the bike spotted the applicant with the bike on Granville Railway Station. The police were called. The applicant pleaded guilty to having custody of that bike which may be reasonably suspected of being stolen or otherwise unlawfully obtained (Count 11). 14 On 24 May 2006 the applicant entered residential premises at Kensington and stole a large number of items having an approximate value of $8000. This was the one indictable offence, the other matters being able to be dealt with in the Local Court. Initial Hearing Before Drug Court 15 Counts 1-7 initially came before the Drug Court on 4 August 2005 I will not set out the individual sentences imposed. The non-parole periods imposed totalled 15 months with the sentences overall totalling 21 months. The Drug Court suspended all of the sentences (but not the periods of disqualification from driving) on the applicant entering into his Drug Court treatment plan. 16 The applicant did not fare well on his treatment plan. There were many instances of non-compliance and he had to serve some 49 days of sanctions in a period of about 10 months. He remained on Phase One of his three phase program. On 21 June 2006 the Drug Court decided that the applicant "had no potential to progress on the program and that the risk to the community of his re-offending was too great to allow him to continue on his program." Features of the Applicant's Case 17 The applicant was born on 3 June 1980. He has a lengthy criminal history with many offences and has no claim to leniency by reason of his past record. That criminal history covers a range of matters including driving offences, drug offences, dishonesty offences and instances of breaking, entering and stealing (or like offences). He was before the Drug Court in 2001 and his final sentences in that year involved terms of imprisonment. 18 The judge noted that the applicant had a prior record for break, enter and steal offences and that one of the offences (Count 7) was committed whilst on bail and that some of the offences (Counts 8-11) were committed whilst on the Drug Court program. 19 The judge took into account the pleas of guilty and their utilitarian value, which particularly on Count 10, was considerable. The judge commented, "there is no suggestion of sophistication or planning in these offences, and they are the typical clumsy offending of a drug addicted offender", and that the applicant "has struggled with drug addictions over a lengthy period of time." 20 The judge took into account the very traumatic, unhappy and disadvantaged childhood of the applicant. He did not have much of a chance to make a good start. His schooling was chaotic and fragmented. He left school at 15 years of age. The applicant had a strong employment history. 21 The judge placed considerable reliance on a detailed psychological report which he described as very helpful. The judge seemed to accept many of the findings and observations in the report. They include: (a) the applicant has minimal competencies to resolve stressors (b) he has an entrenched reliance on drugs to cope with his life's challenges (c) he intensely regrets his relapses but understands that he can learn from these experiences; he will need significant support to progress as he lacks confidence, and is anxious that he may never overcome these issues 22 In addition to imposing the sentences earlier mentioned the judge referred to the Drug Court for consideration whether a Compulsory Drug Treatment Order should be made. This involved the making of assessments. 23 Counsel for the applicant pointed out that based on the total non-parole period of 28 months and the total terms of 38 months the non-parole periods amounted to 73.6 per cent of the total terms. 24 Each of the sentences for break enter and steal, namely on Count (7 months NPP and 11 months total term) and on Count 10 (18 months NPP and 28 months total term) represents a ratio that is appreciably less than the normal ratio specified in s 44 of the Crimes (Sentencing Procedure) Act 1999, namely, the balance of the term must not exceed one-third of the non-parole period unless the Court decides that there are special circumstances for it being more. 25 The judge acknowledged that there was " a need to preserve the statutory relationship between the overall non-parole period and the total term". From this statement and the sentences imposed, it appears that the judge ensured that he accumulation of sentences was treated as a special circumstance and that the overall non-parole periods did not exceed three-quarters or the total term or, put another way, the balance of the term did not exceed one-third of the overall non-parole period. 26 The applicant pointed out that nowhere in his reasons did the judge specifically refer to special circumstances. He relied upon the decision of this Court in R v Henry [2004] NSWCCA 306 (Simpson J with whom Grove and Shaw JJ agreed). In that case there was an accumulation of sentences, the total sentence being 4 years 8 months and the non-parole period 3 years 11 months, resulting in a parole period of 9 months. The sentencing judge in that case did not mention the accumulation of sentences as a consideration relevant to the determination of whether there were special circumstances, and in the circumstances of that case Simpson J inferred that he did not turn his mind to it. She held that the basis for intervention by this Court had been established by demonstrating that consideration was not given to a matter which required consideration. 27 In the present case the judge was alert to the issue of special circumstances. He allowed for the accumulation of sentences when imposing sentences on Counts 7 and 10 and on the remainder of the Counts and expressly referred to preserving the statutory ratio. 28 The judge attached considerable weight to the applicant's subjective features. The judge was conscious of the serious disadvantages suffered by the applicant and the struggle he had had and was having with his drug addiction. The prognosis for the applicant's future rehabilitation could fairly be described as guarded. The sentences imposed could be characterised accurately as moderate and fully reflecting the subjective features of the applicant. Despite the applicant's disadvantages and difficulties the judge thought that in view of the very poor record of the applicant further leniency could not be extended to him. The judge was dubious about the applicant's future, having terminated the Drug Court program because the risk that the applicant would re-offend was too great. He was not responding sufficiently and incurring many sanctions. Care had to be taken that there was "no double counting" in respect of the applicant's subjective features when they were taken into account in the moderate sentences. 29 I am unpersuaded that the judge did not take all relevant matters into account. In any event this was a case where lesser sentences were not warranted, even taking into account the evidence led if the Court had proceeded to re-sentence. 30 I propose that leave to appeal against sentence be granted and that the appeal be 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.