New South Wales Court of Criminal Appeal CITATION: HAINES v R [2008] NSWCCA 12 HEARING DATE(S): 11 December 2007 JUDGMENT DATE: 21 February 2008 JUDGMENT OF: Basten JA at 1; Barr J at 2; Adams J at 3 1. Leave to appeal is granted. DECISION: 2. The appeal in respect of the sentence imposed on charge 1 is dismissed. 3. The appeal in respect of the sentence imposed on charge 2 is allowed so far as the non-parole period is concerned; the non-parole period is varied to a period of two years and six months, so that it commences on 5 October 2006 and expires on 4 April 2009. CATCHWORDS: Sentence appeal - Drug Court referral - initial sentence - failure to adjust for accumulation - no practical effect - sentence should still be corrected. Crimes Act 1900 s 112(2) LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999 s106D Drug Court Act 1998 s18B CASES CITED : R v Fernando (1992) 76 A Crim R 58 PARTIES: Lloyd HAINES (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/2942 COUNSEL: Ms C Loukas (Applicant) Mr M Barr (Respondent) SOLICITORS: Aboriginal Legal Service (NSW/ACT) Limited (Applicant) S Kavanagh (Solicitor for Public Prosecutions) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0573 LOWER COURT JUDICIAL OFFICER: Goldring DCJ IN THE COURT OF CRIMINAL APPEAL 2007/2942 BASTEN JA BARR J ADAMS J 21 FEBRUARY 2008 Lloyd HAINES v REGINA Judgment 1 BASTEN JA: I agree with Adams J. 2 BARR J: I agree with Adams J. 3 ADAMS J: Introduction 4 The applicant pleaded guilty on 31 January 2007 in the District Court to the following offences – (i) between 4 and 5 October 2005 breaking, entering and stealing contrary to s112(1) of the Crimes Act 1900 , carrying a maximum penalty of fourteen years; and (ii) on 5 October 2005, breaking entering and stealing in circumstances of aggravation (being in company) contrary to s112(2) of the Crimes Act 1900, carrying a maximum penalty of twenty years imprisonment with a standard non-parole period of five years. 5 Additionally, the applicant asked the Court to take into account on a Form 1 the offences of having in custody two small amounts of foreign currency suspected of having been unlawfully obtained, assaulting the police attempting to arrest him and resisting the police by struggling with a constable and running away. 6 The applicant was sentenced on 31 January as follows – (i) on the first charge a non-parole period of twelve months commencing 5 August 2006 and expiring 4 August 2007 with a total term of eighteen months expiring 2 February 2008; and (ii) on the second charge a non-parole period of two years and ten months commencing 5 October 2006 and expiring 4 August 2009 with a total term of three years and nine months expiring 4 July 2010. 7 The learned sentencing judge said that he had taken into account the Form 1 offences but omitted to specify the charge in respect of which they were taken into account. His Honour directed that the file be marked, "referred to Drug Court CDTCC [Compulsory Drug Treatment Correctional Centre Program]". This referral was pursuant to s 18B of the Drug Court Act 1998 so that the Drug Court could determine whether the applicant should be the subject of a compulsory drug treatment order. The Drug Court did so determine and the applicant was subjected to the order on 26 March 2007. 8 The overall sentence commenced on 5 August 2006 (charge 1) and ended on 4 July 2010 (charge 2), a period of three years and eleven months. He was able to be released on parole on 4 August 2009, thus a total effective non-parole period of three years. 9 It is clear that the sentencing judge had in mind the regime provided by s 106D of the Crimes (Administration of Sentences) Act 1999 for compulsory drug treatment detention. There are three stages: the first (called closed detention) requires the offender to be kept in full-time custody at the Compulsory Drug Treatment Correctional Centre; the second (semi-open detention) requires the offender to be kept in the Centre but he may be allowed to attend employment, training or social programs outside the Centre as specified in his compulsory drug treatment personal plan; and the third, called community custody, under which the offender may reside outside the Centre at approved accommodation under intensive supervision. 10 The applicant has appealed from the sentence, in substance upon two grounds: that there were special circumstances warranting variation of the ratio in s 44(2) of the Crimes (Administration of Sentences) Act 1999 (the s 44(2) ratio), so that his effective non-parole period should have been shorter; and that the sentence was manifestly excessive. The Facts 11 These were not the subject of controversy. The first offence was committed in an apartment in Surry Hills. The applicant and his co-accused had entered through a security door and stolen a number of items including a laptop computer, wallets and keys. The premises to which the second charge relates was a house also in Surry Hills. The occupants were awoken in the early hours of the morning by their dog barking. They discovered that the window of the front room was open, the blinds opened, and the window bars bent and a number of items stolen. A CCTV camera at the front of the house showed the applicant committing this offence with another offender. It was shortly after this that the Form 1 offences were committed. Subjective circumstances 12 The applicant was 21 years of age at the date of the offences. He pleaded guilty at the committal proceedings and adhered to his plea in the District Court. A utilitarian discount of 25% was allowed by the sentencing judge. 13 The applicant had served prior convictions; in June 2003, goods in custody (as a child) for which he was fined; in September 2003, possessing a prohibited drug and again a fine was imposed; in September 2003, larceny and failing to appear in accordance with a bail undertaking and again he was fined; and, more seriously, in October 2005 (offence committed 3 October 2004), aggravated break enter and steal for which he was initially placed on remand and bailed to allow him to undertake rehabilitation but later sentenced to imprisonment for two years and six months commencing 5 October 2005 and expiring 4 April 2008 with a non-parole period of 1 year expiring 4 October 2006, the present offences being breaches of the bail conditions. 14 The applicant had been in custody since the date of his arrest on 5 October 2005. The judge dealt with him on the basis that this custody related solely to the present offences. 15 Reports from a psychologist were tendered. The sentencing judge dealt briefly, but if I may say so adequately, with the subjective features of the applicant's history. His Honour observed that his record was not bad for a young man who had grown up in the Aboriginal community. The judge considered that the principles set out in R v Fernando (1992) 76 A Crim R 58 (concerning the particular sentencing issues applying to Aboriginal offenders who have been adversely affected by their social and personal circumstances) were significant in the applicant's case. His Honour noted that he had grown up in a family situation moving between various places in the State, had periods of separation from his family, periods of foster care and intervention of various welfare agencies and an environment where drug usage was common. Some members of the applicant's family have suffered mental illness. The applicant had a long standing problem of heroin use and the judge found that the offences were committed because he was using drugs at the time or needed money to obtain drugs. The formulation of the sentences 16 The judge, having determined the first charge should attract a sentence of eighteen months imprisonment, referred to the submission of counsel for the applicant that there were special circumstances justifying a reduction in the non-parole period from that which would otherwise have followed by applying the s 44(2) ratio and said – "…Given Mr Haines' history, particularly in relation to s 11 remand and his failure to take opportunities to enter into rehabilitation programs, I cannot find that he has outstanding prospects of rehabilitation, however, I do think that there are possibilities for him to undertake rehabilitation, if he decides that that is what he wants to do...I think, in any event, because of his history he will require a fairly considerable period of rehabilitation, not only in an institutional setting, but also when he is sent back into the community, so there will need to be an adjustment of the statutory ratio between the total term and the non-parole period and I will come back to that when I determine the sentence for the other matter, which is the aggravated break enter and steal." 17 The sentencing judge referred to the standard non-parole period, the need to impose appropriate sentences for each offence and issues of accumulation and totality, including the need to account for the sentence which had earlier been imposed. His Honour then dealt with the CDTCC program. He did not return to the question of special circumstances. The Appeal 18 The first ground of appeal, in substance, is that the sentencing judge erred in failing to adjust the non-parole period imposed for the second charge to give effect to his indication that special circumstances warranted adjustment. It was also submitted at the hearing that the accumulation of the sentences for the present offences on top of the sentence imposed on 15 December 2005 which commenced on 5 October 2005 was a special circumstance that warranted variation of the non parole period so that the proportion that the overall non parole period bore to the overall period in custody reflected the s 44(2) ratio. If the earlier period is added to the sentences presently under appeal imposed on 31 January 2007, the overall period of imprisonment is increased by ten months to four years and nine months. If this period is the relevant period for calculating an effective non-parole period, then the effective non-parole period exceeded that which accorded with the s 44(2) ratio by about three months and three weeks. 19 It is a further ground of appeal that the overall sentence was manifestly excessive. 20 Dealing with the further ground of appeal first, I am not persuaded that the overall sentence was excessive. Detailed analysis is not useful. The offences were committed in breach of bail and in homes where the occupants were asleep. The offences were distinct although committed within a short time of each other and he received, in substance, wholly concurrent sentences, as the earlier sentence was concurrent both with that passed on 5 December 2005 and that imposed on charge 1. The criminality of the conduct reflected in the Form 1 offences in relation to the police was not trivial. In my opinion, the totality of the sentences fell well within the proper exercise of the sentencing judge's discretion. It was not submitted on the applicant's behalf that the judge made any error of principle or reasoning and I cannot see any error in that respect. Accordingly, this ground should be dismissed. 21 The first ground has more substance. It is clear that, where the effect of accumulating sentences is to increase the proportion of the aggregate sentence to be served before the offender is eligible for parole beyond the s 44(2) ratio, this will be a special circumstance justifying a variation of that proportion in respect of one or more of the sentences to bring the relationship between the effective non-parole period and the overall sentence in conformity with the statutory ratio. For this purpose, consideration should be given not only to the accumulation of the sentences being imposed by the sentencing judge but also any sentence or sentences then being served by the offender. In the ordinary course, it will be appropriate to make such adjustments as will bring the ratio between the effective non-parole period and the overall sentence into conformity with the statutory ratio. This may not be appropriate in every case but, where there is a significant effective departure from the statutory ratio, some explanation should be given for doing so. 22 This was not a case where the effective non-parole period should have been greater than that which would have occurred had the s 41(2) ratio been applied to the overall sentence, as the sentencing judge appeared to acknowledge. It seems to me, with respect, that the judge simply overlooked the necessity to consider or further consider the issue of special circumstances and any adjustment in the effective non-parole period. It may well also be, as submitted for the applicant, that the judge had in mind that special circumstances related to the rehabilitation of the offender might suggest a further adjustment was desirable than that which merely reflected the statutory ratio. I think, however, that the issue of rehabilitation and the relationship between periods of full time custody and supervision outside the custodial situation was overtaken by the decision to refer the applicant to the CDTCC program, this program having, as I have mentioned, its own calibration of progressive supervision. This is the Crown submission on this aspect of the appeal. I think this explains why the judge did not return to the issue of special circumstances. In so doing, however, it seems to me that, with respect, his Honour overlooked the other aspect of the sentences that raised the question of special circumstances, namely their accumulation. The referral made under s 18B of the Drug Court Act 1998 is made after the sentence is imposed. The sentencing process must be completed appropriately before the offender is referred to the CDTCC program. 23 It seems to me, with respect, that the sentencing discretion did miscarry in so far as the non-adjustment of the effective non-parole period to reflect the s 44(2) ratio is concerned. Although it cannot be said that the ultimate sentence, including the effective non-parole period, was excessive, the non-parole period should be varied to reflect the s 44(2) ratio. 24 An affidavit from the applicant was tendered on the appeal against the possibility that the Court considered it was necessary to re-sentence. That affidavit discloses that the applicant was admitted to the CDTCC program and has remained on it. At the hearing of the appeal he was in stage 2. He is on work release and, provided that he continues to make satisfactory progress, he expects to be released to home detention. Of course, these are developments that were unknown to the sentencing judge though it is clear enough that he had them in contemplation. So far as their present relevance goes, they confirm what appeared at the sentence proceedings, that is, that there was no reason for departing from the s 44(2) ratio in a way that increased the proportion of the sentence that had to be served before the applicant was eligible for parole. 25 The Crown prosecutor submitted on the appeal that, although it appeared that the sentencing judge had erred in failing to make the adjustment, this Court should not interfere since the applicant, as it happens, will have the advantage of an earlier period of release from custody than would have been the case had he served a conventional sentence with a non-parole period complying with s 44(2) ratio. I do not consider that this is an appropriate response to the identified error. The error was adverse to the applicant. Although in a practical sense it has been overtaken by events, I do not think this is an adequate reason for not correcting it. Conclusion 26 I propose the following orders – 1. Leave to appeal is granted. 2. The appeal in respect of the sentence imposed on charge 1 is dismissed. 3. The appeal in respect of the sentence imposed on charge 2 is allowed so far as the non-parole period is concerned; the non-parole period is varied to a period of two years and six months, so that it commences on 5 October 2006 and expires on 4 April 2009. ********** 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.