Reported Decision: 192 A Crim R 305 New South Wales Court of Criminal Appeal CITATION: LAPA v REGINA [2008] NSWCCA 331 HEARING DATE(S): 04/06/2008 JUDGMENT DATE: 19 December 2008 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hidden J at 3 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW - appeal against Drug Court sentences - break, enter and steal - supply heroin - pleas of guilty - break, enter and steal dealt with summarily - whether judge could determine starting point in excess of two year limit for Table 1 offence before reduction for plea - whether sentence for supply heroin and overall sentence manifestly excessive Crimes Act 1900 Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Criminal Appeal Act 1912 Drug Court Act 1998 Criminal Procedure Act 1986 CATEGORY: Principal judgment R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383 CASES CITED : R v Doan [2000] NSWCCA 317, 50 NSWLR 115 R v Tran [1999] NSWCCA 109 PARTIES: John LAPA (appellant) Regina (respondent) FILE NUMBER(S): CCA 2007/2969 COUNSEL: A Francis (appellant) G Rowling (respondent) SOLICITORS: S O'Connor (LAC) S Kavanagh (DPP) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2004/162 LOWER COURT JUDICIAL OFFICER: Barnett DCJ LOWER COURT DATE OF DECISION: 27/04/2007 IN THE COURT OF CRIMINAL APPEAL 2007/2969 McCLELLAN CJ at CL HULME J HIDDEN J 19 December 2008 John LAPA v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hidden J. 2 HULME J: I agree with Hidden J 3 HIDDEN J: The appellant, John Lapa, appeals against sentences imposed upon him by his Honour, Judge Barnett in the Drug Court of New South Wales. The sentences the subject of the application are as follows: · On a charge of break, enter and steal (s112(1) of the Crimes Act) imprisonment for 23 months, comprising a non-parole period of 17 months and a balance of term of 6 months, to date from 24 August 2006; · On a charge of supplying heroin (s25(1) and s29 of the Drug Misuse and Trafficking Act), imprisonment for 5 years, comprising a non-parole period of 3½ years and a balance of term of 1½ years, to date from 9 November 2006. The overall sentence is a little over 5 years and 2 months, with an effective non-parole period of a little over 3 years and 8 months. The total sentence would expire on 8 November 2011, and he would be eligible for release on parole on 8 May 2010. 4 To understand the length of the first sentence, and the commencement date of both of them, it will be necessary to sketch the history of the proceedings. Provision for appeals to this Court against sentences imposed in the Drug Court is to be found in s5AF of the Criminal Appeal Act 1912. At the outset of the hearing a question was raised about how the Court should be constituted for the appeal in respect of the sentence for the break, enter and steal offence, given that it had been dealt with summarily: s5AF(1)(b), (3)(b). That question need not be pursued, as it was resolved by a direction of the Chief Justice under subs(3)(b) that the matter be dealt with by a three-judge bench. 5 On 1 December 2004, the appellant appeared before his Honour, Judge Dive for initial sentence, pursuant to s7(as it then stood) of the Drug Court Act 1998, for the break, enter and steal offence and a number of other summary offences. Those other offences are not the subject of this appeal, and need not concern us. He pleaded guilty to the break, enter and steal, and his Honour dealt with the matter summarily under Chapter 5 of the Criminal Procedure Act 1986. As a Table 1 offence under schedule 1 to that Act, he was liable to a maximum sentence of 2 years imprisonment: s267. 6 The offence occurred on 10 May 2004, when the appellant broke into a chemist shop at Toongabbie. He removed a large quantity of prescription drugs and other items, but was intercepted by police when he was leaving the store with them. 7 The appellant was 25 years old when he committed this offence, and he is now 29. He had a significant criminal history, including offences of dishonesty and drug offences. He had previously served short terms of imprisonment, and at the time of the subject offence was subject to good behaviour bonds associated with suspended sentences imposed in the Local Court only about a month previously. 8 Judge Dive found that the offence involved "very little planning", and considered the appellant entitled "to the full utilitarian value" of his plea of guilty. It appears that his Honour would have imposed a sentence of 2 years, comprising a non-parole period of 18 months and a balance of term of 6 months. It was in the light of a discrete period of pre-sentence custody of about a month that he reduced the non-parole period to 17 months, resulting in the sentence of 23 months. That sentence was suspended so as to enable the appellant to enter the Drug Court treatment plan. 9 Unfortunately, he did not fare well. Among other things, between October 2005 and November 2006 he committed a number of further offences, including the offence of supplying heroin the subject of this appeal. Again, the other offences were summary matters which need not be considered. He came before his Honour at the end of March 2007, his Drug Court program having then been terminated. He was sentenced on 27 April 2007. 10 Pursuant to s12 of the Drug Court Act, Judge Barnett passed a final sentence for the break, enter and steal offence by confirming the initial sentence imposed by Judge Dive: subs (3)(b). The commencement date for that sentence of 24 August 2006 was agreed between the parties, having regard to sanctions imposed upon the appellant and periods of pre-sentence custody required to be taken into account by s12(2). Included in that computation was the period of continuous custody since his arrest on 9 November 2006 for the drug supply offence. 11 Put shortly, that offence arose from his possession of 5.14 grams of heroin, contained in balloons wrapped in plastic and concealed on his person. At this time he was 27 years old. The drug was found by police when he was searched on the day of his arrest. The surrounding circumstances conveyed that he had been involved with an accomplice in supplying heroin in the Parramatta area. His Honour saw the offence as part of a planned criminal activity and noted, of course, that it was committed while he was on conditional liberty under the Drug Court program. 12 The 5-year sentence for that offence was directed to commence on the day of his arrest, 9 November 2006. There is thus a significant measure of concurrency between the two sentences, the sentence for the break, enter and steal commencing roughly 2½ months before the sentence for the supply offence and thereafter being wholly subsumed within it. His Honour did not quantify a reduction of sentence for the supply offence because of the plea of guilty but, while noting the strength of the Crown case, he took the plea into account "as a sign of his contrition and as having a high utilitarian value". The appeal 13 Counsel for the appellant, Ms Francis, submitted that both sentences are manifestly excessive and that in relation to the sentence for the drug offence, his Honour failed to give adequate weight to evidence disclosing special circumstances warranting a variation of the statutory ratio between sentence and non-parole period. Her argument concerning the sentence for the break, enter and steal offence centred upon a jurisdictional question, and it is convenient to deal with that first. 14 By s112 of the Crimes Act, that offence carries a maximum sentence of 14 years imprisonment. However, as I have said, because the appellant's offence was being dealt with summarily the maximum sentence his Honour could impose was 2 years imprisonment. It is effectively that term which Judge Dive imposed and Judge Barnett confirmed. 15 However, as noted, Judge Dive said that the appellant was entitled to the full utilitarian value of his plea of guilty. No doubt, that was a reference to a discount of 25 per cent, the top of the range of discount for the utilitarian value of a plea envisaged in R v Thomson and Houlton [2000] NSWCCA 309, 49 NSWLR 383. That being so, his Honour's starting point of sentence must have been 2 years and 8 months. Ms Francis submitted that such an approach exceeded his Honour's jurisdiction, because that starting point was greater than the maximum sentence available to him. 16 The answer to that submission is to be found in a case to which the Crown prosecutor referred us, R v Doan [2000] NSWCCA 317, 50 NSWLR 115. That case was concerned with s27 of the Criminal Procedure Act as it then stood, the equivalent of the present s267. The issue was whether the two-year maximum available to a magistrate was confined to a "worst case" appropriate for summary disposal. That proposition was rejected by Grove J, with whom Spigelman CJ and Kirby J agreed. After a review of interstate authority, his Honour expressed his conclusion in this way: 35 The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a "worst case". 17 By parity of reasoning, it was open to Judge Dive in the present case to determine a starting point of sentence above the two-year jurisdictional limit. The only constraint imposed upon him by the relevant provision of the Criminal Procedure Act was that the sentence actually passed could not exceed 2 years. Accordingly, his Honour's approach was not in error. 18 Otherwise, Ms Francis submitted that the sentence for the drug supply offence is manifestly excessive, given the small quantity involved (5.14 grams). Again, she noted that Judge Barnett had found the appellant's plea of guilty to this offence as having high utilitarian value. Assuming that that plea also earned him a reduction of the order of 25 per cent, the starting point of sentence must have been about 6½ years. 19 Generally, Ms Francis argued that the two sentences are excessive in their totality, and fail to give adequate weight to the period of roughly 2 years that the appellant was in the Drug Court program and such progress as he made during that period. He had had a difficult background, which it is not necessary to recite, and Ms Francis submitted that at the time Judge Barnett sentenced him he was at an age where his rehabilitation would have been fostered by a significantly longer period of parole eligibility than that allowed by his Honour. 20 However, the offence of supplying heroin was not that of a user/dealer, but was in the context of a commercial venture. It was committed while the appellant was on the conditional liberty of the Drug Court program, which his Honour rightly described as "a seriously aggravating feature…". The sentence for that offence of 5 years with a non-parole period of 3½ years represents a limited departure from the statutory ratio, but his Honour made it clear that he did so only because of the measure of the accumulation of that sentence upon the sentence for the break, enter and steal. He was not prepared to find special circumstances otherwise because of the appellant's "betrayal of the opportunity for rehabilitation", adopting the expression of Wood CJ at CL in R v Tran [1999] NSWCCA 109 at [15]. 21 His Honour determined the sentences, and the structure of them, after a careful review of the applicant's background and his progress through the Drug Court program. I can find no error in his approach and I am not persuaded that this Court's intervention is called for. 22 I would dismiss the appeal. 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.