New South Wales Court of Criminal Appeal CITATION: SHEPHERD v R [2007] NSWCCA 166 HEARING DATE(S): 24 May 2007 JUDGMENT DATE: 19 June 2007 JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 23; Smart AJ at 24 DECISION: 1. Grant leave to appeal and uphold the appeal; 2. The sentence imposed on 15 June 2006 be quashed. The applicant resentenced as follows; (a) on the first count the applicant is sentenced to a non-parole period of 2 years to commence on 27 March 2006 and to expire on 26 March 2008 and to a further term of twelve months to commence on 27 March 2008 and expire on 26 March 2009; (b) In relation to the second count the applicant is sentenced to a non-parole period of 2 years to commence on 27 March 2006 and to expire on 26 March 2008 and to a further term of twelve months to commence on 27 March 2008 and expire on 26 March 2009. CATCHWORDS: CRIMINAL LAW - appeal against sentence - break, enter and steal - significant criminal record - failure by applicant's legal representatives to provide sentencing judge with evidence - evidence now available confirming applicant's mental health problems - whether matter should be remitted to District Court LEGISLATION CITED: Crimes Act 1900 CASES CITED: R v Birks (1990) 19 NSWLR 677 R v Munro [2006] NSWCCA 350 PARTIES: Michael Shepherd (Appl) The Crown FILE NUMBER(S): CCA 2007/723 COUNSEL: M Thangaraj (Appl) V Lydiard (Crown) SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/31/0110 LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ LOWER COURT DATE OF DECISION: 15 June 2006 IN THE COURT OF CRIMINAL APPEAL 2007/723 McCLELLAN CJ at CL HISLOP J SMART AJ TUESDAY 19 JUNE 2007 SHEPHERD, Michael v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to two counts of break, enter and steal from a dwelling. The first offence was committed on 17 December 2005 and the second on the following day. They were committed at a shed and house on adjoining blocks of land which were owned by the same victim. 2 The offences were committed contrary to s 112(1) of the Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment. The applicant was sentenced to concurrent terms of imprisonment comprising a non-parole of 2 years and 3 months commencing on 27 March 2006 and expiring on 26 June 2008 with a further term of 9 months expiring on 26 March 2009. 3 The sentencing judge recorded the relevant facts as follows: "The circumstances giving rise to the commission of these offences are that between midnight on Saturday 17 December 2005 and 7.30 am on Sunday 18 December, the offender entered the shed at the rear of 32 Little Street Forster through the front doors which were previously closed and latched. Whilst inside he ransacked the property. He then stole a red coloured men's mountain bike, leather fishing tackle bag and a plastic fishing tackle box, all of which contained fishing tackle, six fishing rods with reels, one fishing rod had a black fish rod with side cast reel, another a deep sea rod with overhead reel and the other fur were light rods with eggbeater reels. He took that property to an unknown location, with the value of the property being some fifteen hundred dollars. Within the same timeframe, he entered the premises 34 Little Street Forster, which was on the same block of land. All entry points to this location were previously closed. The front door was not locked. Whilst inside the offender ransacked through property, placed an ice-cream maker, a juicer, 20 DVDS in a pack, electrical cords, a video machine, six books, a snakeskin diary cover and power board into a black coloured Samonsite travel bag and left it at the location. He put on a red cap and black coloured t-shirt with 'Jubilee 2000' written on it, took a hand painted six foot eight inch surfboard, left that at an unknown location. All of the mentioned property, including the clothing and bag, belonged to the victim. At about 8.30 am on 18 December, the offender returned to the house at 34 Little Street and took the black coloured Samsonite travel bag containing the property that has been referred to and a Scrabble board and walked outside. The victim, Mr Rinkin, stopped the offender. The offender dropped the black coloured Samsonite travel bag and Scrabble board and ran south along Little Street. Chase was given and ultimately when the offender decamped, the victim alerted police and the offender was located within the streets of Forster." 4 The applicant has a significant criminal record. He was born on 30 May 1953 and was convicted for the first time in the Children's Court on 16 February 1968 for illegally using a motor vehicle, being an unlicensed rider and negligent driving. At the same time he was convicted of stealing from a dwelling and receiving stolen property. A year later he was convicted of stealing and on 10 March 1970 he was committed to a boys' home for assault and robbery. 5 In Brisbane in 1971 he was convicted of stealing with actual violence and placed on a two year bond. Thereafter, during the 1970s, he was convicted of stealing, offensive behaviour, various traffic matters, selling Indian hemp, resisting arrest, unseemly words and various assault convictions. He then experienced a period when he did not receive a conviction but in 1980 was sentenced to 12 months periodic detention for supplying Indian hemp. During the 1980s he received convictions for assault, high range PCA, resist arrest, offensive behaviour, goods in custody, stealing motor vehicle, traffic offences and larceny. 6 In October 1990 the applicant was convicted of a mid-range PCA offence and driving whilst disqualified. In 1991 he was convicted of assault and in 1993 of assault, malicious injury, stealing and two counts of break, enter and stealing. 7 In October 1993 he was sentenced to 2 years and 6 months for robbery and to 3 years for robbery when armed. In December 1998 he was again sentenced for assaulting a person, malicious damage to property, assaulting a police officer in the execution of his duty and resisting an officer in the execution of his duty. He was also convicted in June 1998 for threatening to destroy property, injuring another, resisting an officer in the execution of his duty and refusing to submit to breath analysis. He received further convictions in 2000 for various traffic matters. In 2002 for larceny and various other offences. 8 The sentencing judge concluded that drugs and alcohol have been "a big issue" in the applicant's life. At the sentencing hearing the applicant gave evidence of attempts he had made when on parole to receive treatment for his problems. The applicant told the sentencing judge that he admitted that his conduct "was not good enough" and that he had "to get professional help" and "stop drinking now." The applicant told the sentencing judge that he had sought assistance from the Drug and Alcohol Service at Forster. The applicant also gave evidence that shortly prior to the offence his motorised home had been destroyed and that he had been kicked in the head on the street. He said these events contributed to his offending. 9 His Honour was not impressed by the applicant as a witness. On the first day of hearing on 13 June 2006 his Honour made it apparent that he would not accept the applicant's evidence unless it was corroborated. A request was also made for his Honour to grant the applicant bail so he could attend a centre for treatment. His Honour declined this application, making it plain that he did not accept the applicant's evidence as being reliable. 10 Notwithstanding his Honour's preliminary view he provided the applicant with an opportunity to bring further evidence to corroborate the evidence he had already given. He did this for the purpose of considering whether or not the applicant should have the benefit of a finding of special circumstances which may have shortened his non-parole period. 11 The matter was stood over to Thursday, 15 June 2006. On that occasion no evidence was tendered or adduced. His Honour repeated a reference to the applicant's criminal history and said that he had difficulty in accepting his evidence except for the admission of drug and alcohol problems. His Honour said: "I accept that drugs and alcohol have been a big issue in the offender's life. The offender has given evidence of progress being made on Probation and Parole and receiving treatment at the Taree hospital. I must say I find most of the offender's evidence not credible and I am not prepared to accept it unless it is corroborated, except for the fact that he has had significant alcohol and drug issues in his life." 12 Evidence has been tendered to this Court, without objection from the Crown, which confirms much of the detail of the matters related in evidence before the sentencing judge. It was submitted, as a result of this evidence that this Court should conclude that the sentencing proceedings miscarried. It was submitted that the evidence which is now available confirms the applicant's mental health problems which should have resulted in his Honour placing less importance in matters of deterrence leading to a reduction in the head sentence. It was further submitted that the further evidence confirms that the applicant has now confronted his problems and recognised the need for assistance to remove his dependence on alcohol and drugs, which would justify the finding of special circumstances. It was submitted that the applicant's position before the sentencing judge was seriously compromised by the lack of diligence of his representatives in bringing forward the evidence which his Honour sought which was available to corroborate the applicant (see R v Birks (1990) 19 NSWLR 677). 13 The evidence which is before this Court confirmed that the applicant attended the Drug and Alcohol Service at Forster for assessment on 4 November 2005. However, he did not attend a further appointment made for 11 November 2005. This would seem to have been due to the fact that he had been assessed after arriving at Manning Base Hospital on a schedule. He was seen by the Drug and Alcohol Service in Forster again on 28 November 2005 and on 7 December 2005 was seen in Taree by the Drug and Alcohol intake worker at Taree. The applicant later attended a further appointment on 14 December 2005. 14 A further appointment was made for the applicant on 5 January 2006. However, he could not keep this appointment because he had been taken into custody in relation to the present offences. 15 Evidence was also tendered to this Court which confirmed that the applicant had been taken to Manning Base Hospital on 10 November 2005 where the presenting problem was recorded as a possible psychotic episode. The principle diagnosis is recorded as being "antisocial personality disorder" with a secondary diagnosis of "alcohol abuse." A medical report as to the applicant's state was completed by a doctor who described the applicant as "mentally ill." 16 There is other evidence which confirms the fact that the applicant suffered a psychotic episode in late November and continued to have relating health problems in December 2005. The applicant accepts that he was mentally ill, a homeless person with a significant alcohol problem when he committed these offences. 17 In R v Munro [2006] NSWCCA 350 this Court considered the circumstances of an applicant who had pleaded guilty to a count of maliciously inflicting grievous bodily harm with intent. At the sentencing hearing the judge endeavoured to draw the applicant's counsel's attention to the need for proper evidence to ensure that a just sentence could be imposed. The decision of this Court indicates that counsel failed to appreciate the concerns of the sentencing judge and lacked an appreciation of the relevant principles. The court concluded that the proceedings had miscarried, quashed the sentence and returned the matter to the District Court for resentencing. 18 The applicant submitted that by reason of the failure to provide the sentencing judge with evidence which his Honour had sought and which was available, the applicant's sentencing hearing miscarried. It was submitted that this Court should take the same course as that taken in Munro and remit the matter to the District Court. 19 I am satisfied that the sentencing hearing miscarried. It is plain that his Honour was concerned as to whether the applicant was entitled to a finding of special circumstances to enable an extended period of supervised release to assist in his rehabilitation. The evidence which his Honour sought by way of corroboration of the applicant's account of the relevant events was available and would have confirmed that the applicant was telling the truth. It must be concluded that the failure to bring this evidence was a consequence of a lack of diligence by his representatives. In these circumstances I am satisfied this Court should intervene and quash the sentence which was imposed. 20 I have considered whether this Court should proceed to resentence or whether the matter should be remitted to the District Court. If it was remitted it would be likely that the rehearing would be delayed for a period of time. The applicant is presently due for release in June next year with the consequence that if the matter was remitted to the District Court the opportunity to reduce the applicant's sentence would be confined. In these circumstances, in my view, this Court should proceed to resentence having regard to the evidence which is presently available. 21 The applicant has a lengthy criminal history which it may be assumed has been contributed to by his drug and alcohol problems. If he is ever to rehabilitate himself he will require a significant period of treatment and an opportunity for a period of supervised release into the community where facilities are available to allow him to establish a life free of drug and alcohol problems minimising the risk of him reoffending. He will also need treatment for his psychosis and an opportunity to access appropriate medical, counselling and other services. 22 The evidence now before this Court establishes that before committing the present offences the applicant had come at least to a limited recognition of his problems. He had voluntarily taken steps to obtain treatment, which was interrupted by a supervening psychotic event, followed by his offending. In these circumstances I am satisfied that if the evidence before this Court had been available to the sentencing court a finding of special circumstances would have been made and the applicant provided with an extended period of parole. However, the nature of his offences and his appalling history of reoffending would, in my opinion, have only resulted in a modest reduction in his non-parole period. The orders I propose are: 1. Grant leave to appeal and uphold the appeal. 2. The sentence imposed on 15 June 2006 be quashed. The applicant resentenced as follows: a. On the first count the applicant is sentenced to a non-parole period of 2 years to commence on 27 March 2006 and to expire on 26 March 2008 and to a further term of twelve months to commence on 27 March 2008 and expire on 26 March 2009; b. In relation to the second count the applicant is sentenced to a non-parole period of 2 years to commence on 27 March 2006 and to expire on 26 March 2008 and to a further term of twelve months to commence on 27 March 2008 and expire on 26 March 2009. 23 HISLOP J: I agree with McClellan CJ at CL. 24 SMART AJ: I agree with McClellan CJ at CL. ********** 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.