Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brough v R [2013] NSWCCA 110 Hearing dates: 24 April 2013 Decision date: 16 May 2013 Before: Latham J at [1]; Button J at [2]; Barr AJ at [3] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW: sentence appeal- drug rehabilitation- institutionalisation at a young age- non-parole period. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bugmy v The Queen (1990) 169 CLR 525 R v Rushby [1977] 1 NSWLR 594 R v Hayes [1984] 1 NSWLR 740. Category: Principal judgment Parties: Corey Brough (Applicant) Regina (Respondent) Representation: Counsel: P Segal (Applicant) N Adams SC (Respondent) J Davidson (Respondent) Solicitors: Brock Partners (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/279629 Decision under appeal Date of Decision: 2012-05-11 00:00:00 Before: Coorey DCJ File Number(s): 2011/279629 Judgment 1Latham J: I agree with Barr AJ. 2Button J: I agree with Barr AJ. 3BARR AJ: This is an application for leave to appeal against sentences imposed in the District Court. The Facts 4At 10.17 pm on 28 August 2011 the occupant of a pharmacist's shop at 460 Church Street, Parramatta locked the premises and left. Seven minutes later the applicant, Corey Brough, and two others broke through the back door and entered the shop. They stole a cash box containing about $100. The applicant was then 29 years old. One of his companions was his 18 year old brother Kyle Brough. 5At 11.08 pm on the same night the same three broke into another locked shop, the premises of Fitness First at 57 Macquarie Street, Parramatta. They stole a little over $2,500 in cash together with goods worth more than $700. 6The three were stopped and searched by police about an hour later. Each possessed a substantial amount of cash the proceeds of the second theft. Police searched the applicant's residence two days later and found clothing matching that worn by the three thieves, as recorded on security cameras. 7In the Local Court the applicant pleaded guilty of two counts of aggravated breaking and entering and committing the serious indictable offence of larceny, contrary to s 112 (2) Crimes Act 1900. The aggravation was constituted by the company in which the applicant committed the offences. The maximum penalty for each offence is 20 years' imprisonment. The Applicant's History 8The applicant has a very serious criminal record. He was born on 22 April 1982 and first came under notice for stealing when brought before the Children's Court at the age of 12 years in 1994. From then on he was brought before the Children's Court and later the Local Court on many occasions. At first he had the benefit of probation orders, then control orders, but inevitably custodial sentences began to be imposed. He was first taken into custody in March 1999. His offences were for the most part property offences of a kind ordinarily committed by persons addicted to the use of illegal substances as he was. There were also offences of violence and a number of escapes or attempted escapes from lawful custody. 9The applicant's latest release from custody before the subject offences was on 25 July 2011 on the expiry of the non-parole period of a sentence imposed at the District Court on a charge of attempting to escape from lawful custody. The applicant's parole was revoked on 31 August 2011 consequent upon his arrest for these offences. 10The sentencing Judge was told that the applicant, then 30 years of age, had been at liberty for only 10 months out of the previous 12 years. A report of Dr Richard Furst, psychiatrist, was tendered on sentence. Dr Furst interviewed the applicant in custody and reviewed documents disclosing his social, criminal and psychiatric history. He diagnosed the applicant as being opiate dependent, as abusing amphetamines and as having previously experienced drug-induced psychosis. He diagnosed anti-social personality disorder and noted that the applicant's mental state was affected by substance abuse. He had limited coping skills and there was evidence of institutionalisation. Under his recommendations for treatment and rehabilitation Dr Furst wrote as follows- Custodial Options I would recommend that Mr Brough be referred to a clinical psychologist working for the Department of Corrective Services to addresses [sic] his offending behaviour. This should probably include counselling to improve his social skills and problem solving abilities. Anger management is probably indicated given his history of behavioural problems and his antisocial personality disorder. The Violent Offenders Treatment Program (VOTP) may well be indicated to deal with his issues in a more therapeutic manner. Drug and alcohol and counselling should be provided in custody given his history of opiate dependence. He may be a candidate for a custody based drug and alcohol rehabilitation program such as 'Getting SMART' and/or ongoing specialist treatment with the Methadone Maintenance Program. He should be encouraged to engage in further education and vocational training to assist his adjustment into society upon his release into the community. Community Options In the event that Mr Brough is granted community based treatment, I would recommend the following treatment plan: 1.He is placed under the care of his local Probation and Parole officer to coordinate his treatment in the community. 2. He is referred to his local community health centre or the Centre for Addiction Medicine (CAM) at Cumberland Hospital with a view to engaging in drug and alcohol counselling and/or rehabilitation. 3. Consideration be given to ongoing treatment on the Methadone Maintenance Program. 4.He continues medication as prescribed, currently Olanzapine 10mg. 5. He engages in anger management and/or other suitable psychological interventions to address his offending behaviour. 6. He engages in appropriate work or study. 7. He remains of good behaviour. 11Dr Furst concluded his report thus- Prognosis Mr Brough's progress is guarded as he is institutionalised and has failed to cope when previously released into the community, relapsing into substance abuse and stopping his medication. His prognosis may be improved by ongoing specialist involvement with drug and alcohol services, anger management, stable accommodation and meaningful vocational pursuits. 12The balance of parole of the applicant's existing sentence was due to expire on 27 March 2012. The Sentences 13On the first count his Honour set a non-parole period of two years, commencing on 2 January 2012, with a balance of term of one year and six months. On the second count his Honour set a non-parole period of two years and one month, commencing on 2 February 2012, with a balance of term of one year and six months, expiring 1 September 2015. The effective head sentence was therefore of three years and eight months with a non-parole period of two years and two months. 14In dating the first of the sentences to run from 2 January 2012 his Honour made the sentences run concurrently with the balance of parole for a period of one month and 25 days. 15The first ground of appeal complains that his Honour did not give sufficient weight to the particular and unusual circumstances of the applicant in relation to his rehabilitation and his being institutionalised. 16The "particular and unusual circumstances" referred to in this ground of appeal were the tension between the applicant's institutionalisation and his need, identified by Dr Furst, of the assistance of specialists, particularly in managing anger and the desire for alcohol and other drugs and in vocational training. It was submitted that the 18 months allowed in the sentence was insufficient for proper supervised rehabilitation to take place because, although the applicant was motivated, that alone would not be enough. Nothing less than a significantly longer time than that allowed was needed for professional intervention outside the gaol environment. Reference was made to other cases in which longer periods of parole had been provided for. Of course, their facts were different and examination of them would achieve nothing. It is sufficient to say that the Court accepts that institutionalisation is a factor that may be taken into account in sentencing. 17It was submitted that his Honour took institutionalisation into account only as relevant to Dr Furst's guarded prognosis for rehabilitation, rather than in structuring the sentence. 18The transcript records the debate which took place between his Honour and Counsel for the Crown, the applicant and the applicant's younger brother. It shows that his Honour was well aware of the details of the assistance Dr Furst was proposing during and after custody. His Honour referred to those matters in terms. The difficulty for the applicant was that his Honour was bound to structure sentences that also met demands inconsistent with a long parole period. Courts sentence offenders for a number of purposes. The principal one is the protection of the community, and this is done by imposing sentences, which give effect to deterrence, generally and of the offender, retribution, protection and rehabilitation of the offender. A sentencing court must balance these needs. It will err if it imposes sentences that fail to reflect the gravity of the offence; R v Rushby [1977] 1 NSWLR 594; R v Hayes [1984] 1 NSWLR 740. The purpose of the non-parole period is to provide a mitigation of the punishment of the offender in favour of rehabilitation; Bugmy v The Queen (1990) 169 CLR 525. The non-parole period must, however, recognise the need for punishment and deterrence. 19Recognising these matters, his Honour discussed with counsel the minimum period he could fix without parole. His Honour told counsel for the applicant that he was considering a non-parole period for the applicant's brother in the range of 12-18 months and observed that the period for the applicant would be a little higher. Counsel for the applicant, who did not appear on the appeal, submitted that the applicant's non-parole period would have to be six to eight months longer. When his Honour agreed with that proposition Counsel for the applicant said that he had no further submissions. 20The non-parole period of two years and two months is thus seen to be precisely what his Honour foreshadowed and what Counsel then appearing for the applicant accepted as appropriate. 21The difficulty in this ground of appeal is that it attempts to put the rehabilitation of the applicant above the other objects of sentencing. In my opinion the allocation of the components of the total effective sentence to custody and parole fell within the proper range of his Honour's sentencing discretion. 22The second ground of appeal asserted that the sentences were excessive. Counsel appearing in this Court combed through what his Honour said during the debate and picked out phrases. It was submitted that his Honour, having correctly decided to allow the applicant a 25 percent discount for his early plea of guilty, said that in his opinion two years was the bottom of the range for the non-parole period. That remark disclosed error, it was submitted, because his Honour ought first to have considered an appropriate head sentence, discounted it by 25 percent and ascertained what it was before giving attention to the non-parole period as a proportion of it. 23When a sentencing judge speaks about what it is proposed to do, the Judge can express ideas only in a linear fashion. I would not take the fact that a judge mentioned a non-parole period first as indicating that the judge had not already considered what the head sentence might be and therefore what portion of it the non-parole period might represent. The terminology of s 44 Crimes (Sentencing Procedure) Act 1999 is instructive. By subs (1) the sentencing court is first required to set a non-parole period. The Act next speaks, in subs (2), of the balance of term of the sentence. It would not be suggested, I think, that by dealing with the non-parole period and the balance of the head sentence in that order the Act were requiring the Judge to set a non-parole period before thinking of the head sentence or the balance of the head sentence after the expiry of the non-parole period. And, of course, Judges do no such thing. 24My impression is that his Honour had a sound feeling for the head sentence and for the lower end of the range of the available non-parole period, bearing in mind the totality of the applicant's criminality. It is not surprising that Counsel for the applicant agreed. The resulting sentences are unsurprising. There is no substance in this ground. 25I would refuse leave to 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. Decision last updated: 23 May 2013