Drug Court New South Wales Medium Neutral Citation: R v Joshua Luke CAGE [2014] NSWDRGC 1 Hearing dates: 14 July 2014 Decision date: 14 July 2014 Before: Judge Cloran Decision: See paragraph [81] Catchwords: SECTION 58 Crimes (Sentencing Procedure) Act - Drug Court sitting as a Local Court - limitation on consecutive sentences imposed by Local Court - unexpired sentence - new sentence of imprisonment to be served consecutively. Legislation Cited: Drug Court Act 1998 NSW Crimes (Sentencing Procedure) Act1999 NSW Drug Misuse and Trafficking Act 1985 NSW Crimes Act 1900 NSW Road Transport Act2013 NSW Cases Cited: R v Ponfield [1999] NSWCCA 435 R v McNaughton [2006] NSWCCA 242 Pearce v The Queen(1998) 72 ALJR 1416 R v Henry (1999) 46 NSWLR 346 Veen v The Queen (No 2) (1988) 164 CLR 465 R v Cartwright (1989) 17 NSWLR R v Ehrlich [2012] NSWCCA 38 R v Sukkar [2006] NSWCCA 92 R v Ellis (1986) 6 NSWLR 603 Bugmy v R (2013) 87 ALJR 1022 R v JRD [2007] NSWCCA 55 R v Callaghan (2006) 160 ACrimR 145 R v KM [2004] NSWCCA 65 Category: Sentence Parties: Crown Joshua Luke CAGE (Offender) Representation: K. Woodward, Director of Public Prosecutions P Winch of Counsel, instructed by the Legal Aid Commission File Number(s): 1047 of 2013 JUDGMENT: 1During submissions on sentencing the prosecution tendered remarks on sentence at initial sentencing, a Drug Court Program chronology, drug test results, his sanctions history and his criminal record. The defence tendered a psychological report from Anna Robilliard, forensic psychologist, dated 6 November 2013. 2There are 65 matters for final sentence pursuant to the Drug Court legislation, the offender having received initial sentence under the legislation on 15 July 2013. I rely upon the judgment at initial sentence, particular the facts of the offences and the matters taken into account. I do not propose to repeat those matters. The offender's Drug Court Program was terminated by the Court on 2 September 2013 following the offender's arrest on a warrant issued by this Court and further offending and that termination was pursuant to s 10(1)(b) of the Drug Court Act that the offender's participation in the program poses an unacceptable risk to the community that he may reoffend. 3Final sentences in those matters where there is initial sentence are governed by s 12 of the Drug Court Act which requires the Court to reconsider the drug offender's initial sentence. In doing so, the Court must take into account the nature of the drug offender's participation on his program and all time served referrable to the matters being dealt with. The Court is then to re-determine the sentence in accordance with the section. 4At initial sentence he was sentenced with respect to 31 offences. 5As a result of that the Court fixed an aggregate sentence of four years and three months pursuant to s 53A Crimes (Sentencing Procedure) Act. Pursuant to s 7A subs (4) of the Drug Court Act, at initial sentence the Court does not fix a parole period. Fresh Matters 6The fresh matters are sequences 32 to 66. The first matter is pursuant to s 10 of the Drug Misuse and Trafficking Act, an offence which carries a maximum penalty of two years' imprisonment; break, enter and steal pursuant to s 112(1)(a) of Crimes Act which carries a maximum penalty of 14 years' when dealt with on indictment; dishonestly obtain property by deception pursuant to s 192E(1)(a) of Crimes Act which carries a maximum penalty of ten years when dealt with on indictment and two years when dealt with summarily; receiving pursuant to s 189 of Crimes Act which carries a maximum penalty of three years when dealt with on indictment and two years when dealt with summarily; larceny pursuant to s 117 of Crimes Act, five years when dealt with on indictment and two years when dealt with summarily; driving while disqualified, a second offence pursuant to s 54(1)(a) of the Road Transport Act 2013, two years imprisonment; goods in custody pursuant to s 527C of the Crimes Act, six month imprisonment; dealing with property suspected of being the proceeds of crime pursuant to s 193C subs (1) of the Crimes Act, two years' imprisonment. 7These matters are a mixture of pre-program and on-program offences, that is, offences committed before he came onto the Drug Court Program and matters committed after he was admitted onto the Drug Court Program and whilst subject to a suspended sentence imposed at this Court. 8The facts of the matters. On Friday 9 August 2013 the victim was at home in Cressington Way at Wallsend. Unknown persons have forced entry by removing the rear kitchen window flyscreen and opened a fully closed, but unlocked kitchen window. The offenders have entered through this window and whilst inside the house have stolen a wallet containing credit cards. Shortly afterwards at about 3am on 9 August this offender is depicted on CCTV entering a 7-Eleven at 397 Main Road at Glendale and bought a Telstra phone card, cigarettes and flavoured milk to the value of $144. 9In respect of the victims who reside in William Street at Jesmond. This is a separate offence. At about 12pm on Friday 9 August the residence was left vacant and secure. At about 2.20pm the victims returned home to find the residence broken into. The offender has used an unknown object to smash the rear ground floor window. He has rummaged through the lounge room and two bedrooms, removing an amount of property including two laptops, an iPod, assorted jewellery and personal papers. The total value of the property is approximately $3,500. 10Swansea RSL Club is situated in Bridge Street at Swansea. Between 3am and 4am on 21 August 2013 it is alleged that the offender has gained entry to the premises by forcing a side entry fire door. Once inside he has proceeded to the administration room where high-quality CCTV has captured his movements as soon as he entered. The accused is captured trying to force open the safe with a jemmy bar. At 3.42 he managed to force entry into the safe room and immediately attempted to open two large free-standing safes. When unsuccessful, he has rummaged through other items stored on shelves and proceeded to place items into a white bag. Once again he spent a considerable time in this room and left at 3.52am. A later inspection by staff discovered that approximately $8,000 in cash from a football tipping punters' club and a charity fund was stolen from various receptacles stored on shelves above the safes. And also a Hewlett Packard laptop was taken together with keys to the club poker machines and safe. 11Between 17 August and 19 August the offender stayed in a unit 102 within the Chifley Apartments at Newcastle which is on level 1, with two other males. The accused organised a late checkout for 12pm. About 10am the victim left the unit secured. About 12pm the accused is seen on CCTV to enter the pool area via the door on level 1. Once inside the pool area the accused jumped over the planter box which leads directly into the balcony of the victim's unit. Once inside the victim's unit, the accused is seen on closed circuit TV - is seen to open - sorry, I withdraw that. Once inside the balcony, the accused opens a closed but unlocked glass sliding door, ransacked the victim's unit removing a suspension filing sleeve containing a number of the victim's financial information including a Bankwest card and associated PIN number. A small hotel-style safe was ripped from the wooden shelving in the main bedroom. The safe contained a large amount of jewellery including an 18-carat gold shield as well as an amount of Hong Kong and American currency. Also in the wardrobe were a number of expensive watches including a Cartier Roadster silver watch and a Cartier small gold watch. The total value of the property exceeds $38,000. 12On Thursday 28 August 2013 police have conducted a traffic stop and the accused has claimed ownership of a bag and its contents. Upon searching the bag police located clothing belonging to the accused with a tin. The tin contained a clear resealable bag containing a crystalline substance. He stated the item was Ice for personal use. It weighed 0.38 of a gram. Police conducted a search of the Executive Villas in Michael Street at Jesmond and checks found a stamp collection, a Macbook Pro and other identification cards were identified as stolen from recent break, enter and steal incidents. 13At 5.30am on 28 August 2013 the offender has entered the office area of Volvo Commercial Vehicles located at Birabba Avenue at Beresfield. Whilst in the office the accused stole four Dell laptop computers and approximately $150 cash from a drawer. Fingerprints were located and matched the accused's. A total value of $6,000. 14About 9am on Sunday 4 November 2012 the victim, an elderly lady who lives alone, was in her back yard situated in Dowling Street at Dungog hanging out washing. At this time it is alleged the offender entered her house via the rear screen door which was closed, but not locked. It is alleged the offender has walked into to dining area and removed the victim's handbag from the table. The handbag contained a wallet and other personal items. The wallet contained approximately $250 cash and all the victim's cards including a Westpac Everyday Account key card, a Westpac Mastercard, a New South Wales driver's licence. The bag also contained a piece of paper with the victim's PIN number written on it. It is alleged the offender has also entered the victim's bedroom and removed a black leather folding jewellery wallet and black rectangular jewellery box containing jewellery from the dressing table. The Court notes the facts and also bears in mind the De Simoni principles and that it does not take into account facts which would show that the offender was guilty of a more serious offence. Westpac advised the victim in that matter that $1,000 in cash was withdrawn from an ATM at Clarence Town at 9.46am that day. 15Some time between 16.30 on 23 August 2013 - sorry, on Sunday 18 August at 8pm the victim has left her villa at Turnberry Avenue, Magenta. Some time between then and 4.30 on 23 August 2013 the offender smashed a side window using a screwdriver and entered the unit through the window. He rummaged through the unit and located a floor safe attached to a cupboard. The safe contained $100 in cash, personal papers of the victim. The accused picked up a cupboard containing the safe and exited the unit via the rear door with the property. He has later opened the safe revealing the contents which, along with the safe were dumped in bushland. 16At 5.45am on 23 August the victim left premises at Bannerman Road at Kenthurst. Some time between then and 7.30 that day it is alleged that the offender has entered - attended this property and gained entry to the premises by opening a ground floor rear window by unknown means. Once inside the premises he has stolen two mobile phones and a wallet and its contents including a driver's licence, credit cards and Medicare cards. Between 8am and 2pm on the same day it is alleged the offended used GM Cabs' Visa credit card fraudulently at David Jones at Tuggerah for $637.80, Borderline Surf at Long Jetty $94.95, LJ Charcoal Chicken at Long Jetty $62.80. About 2pm the victim cancelled his credit card and later reported the incident to police. On 28 August 2013 when the accused was arrested in relation to other matters a search of his unit at Executive Villas at Jesmond located the victim's stolen mobile phone. 17The premises at Kings Road at Cooranbong is a rural property. Between 11.15 on 26 August 2013 and 3.15am on 27 August 2013 the accused has gained entry to the house by opening a closed verandah window by unknown means. The accused has stolen the victim's wallet from a table in the lounge room containing personal cards, driver's licence, Qantas card, ANZ, NIB, NAB credit cards, Medicare cards, laptop bag, tartan handbag, two projectors, Apple remotes, Canon camera, car and house keys. The victim had her motor vehicle registration - motor vehicle parked in the front carport of the premises. Between 11.30 on 27 August and 6am on 28 August the offender has attended the property. It is alleged he has approached the victim's vehicle and opened the closed but unlocked driver's door, stolen an iPad in a purple case, the victim's blue purse containing assorted credit cards, driver's licence, GEM GE Visa card and Medicare card. 18At 5.20am on 28 August 2013 the offender is captured on high-quality CCTV at Coles Express Service Station at Thomas Street at Wallsend. He purchased property to the value of $507.55 using the GEM GE credit card. Some time between 5.30am and 8am on 28 August 2013 the offender has attended Austar Mine situated at Middle Road at Paxton. The offender was dressed in suit pants and a mining WDS brand fluoro work vest. He had tried to appear as a mining contractor or employee. The accused was flagged through the security gate as he was wearing this clothing. The accused has entered the bath areas where the employees' lockers are kept containing personal belongings. The accused has forced open a lock and stolen the victim's car and house keys from his locker. He has then left the bath house area with the car and house keys. 19The accused has then located the victim's vehicle, a black Holden utility. He has entered the vehicle and stolen the victim's wallet, driver's licence, Tag Heuer watch, iPhone 4 and ANZ credit card. 20On 28 August 2013 the offender was captured on high quality CCTV driving a green VF Commodore sedan into the car park of the Tasman Colliery situated on George Booth Drive at Seahampton. 21The accused has never held a driver's licence in the State of New South Wales; is disqualified until 2015. 22The accused then enters the bathhouse area of the Tasman Colliery Mine carrying a black bag. He then cuts the locks on several lockers, breaking into the locker of the victim, steals the car keys and key tag. He has also broken into a locker of another victim, stolen a wallet, Medicare card, driver's licence and services card, $300 cash, an Apple iPhone 4, CBA credit card, dark brown leather wallet. He has also broken into the locker of another victim using pliers to cut the lock and stole car keys attached to the house. 23A search of the accused's unit in Jesmond on 28 August located the property mentioned from the Austar and Tasman Colliery mines. 24At 10.10am on 28 August 2013 during the search of the hire car, police located an amount of cash totalling $642 in a bag belonging to the accused. Police believe this cash to be the proceeds of crime. 25At 11am police searched the unit he had been residing in, in Michael Street at Jesmond. A green purse, foreign coins, jewellery, two Seiko men's watches, a gold bracelet, a silver coloured Cartier brand watch, gold coloured necklace with engraving and two silver coloured Gucci watches. 26At 3.57pm on 12 November 2012 the victim arrived at Iron Horse Inn at Main Road, Cardiff. She placed her belongings in the office. At about 11.20pm that day she returned to her personal belongings, located her purse missing, it contained $140. She reported her cards stolen. She became aware whilst speaking to the financial institutions that her NAB credit card and NAB savings card had been attempted to be used; on Monday 12 November 2012 about 10pm at 7-Eleven at Warners Bay, an attempted withdrawal from the ATM, $100; Telstra Melbourne, NAB Visa about 11.53pm, and online, $180 at Telstra Melbourne, NAB Visa. 27On 13 November 2012, about 12.16am at 7-Eleven at Warners Bay, $44.38; 12.18am at 7-Eleven at Warners Bay, $40; 12.45am, online, $50; 2.31am at Coles Express at Hexham, $50; 5.57am, via phone, $17; and 9.14am at Dick Smith at Muswellbrook, $721.94, that is an attempt; and 9.20am at Radio Shack at Muswellbrook, $524.90. 28About 3.30am on Friday 9 August 2013 the offender entered an office building dressed in high visibility work clothing similar to that of employees; he selected a black backpack containing a computer and related equipment, a digital projector, computer tablet and digital camera. The value of these items is approximately $3,000. He is identified on good clarity CCTV. 29The offender pleaded guilty as soon as the matters came before the Court. In fact, it was indicated at a very early time that he wished to plead guilty. Accordingly, the plea of guilty is not only a sign of his contrition but has a high utilitarian value and he will receive the maximum benefit thereof of 25%. 30Proper regard is to be taken to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. This Court will also take into account the aggravating and mitigating facts set out in s 21A, as well as the objective and subjective facts that affect the relative seriousness of the offence. 31The on-program offences, sequences 32-38, 41-56 and 66 were all offences committed whilst the offender was the subject of two suspended sentences imposed at this Court at initial sentence. He was subject to parole for offences dealt with at the Gosford District Court in 2010, as he was at the time of initial sentence in July 2013. It is pertinent to note that that sentence imposed at Gosford District Court expired on 17 June 2014. 32In R v Ponfield [1999] NSWCCA at 435, the Court there said that: "Domestic burglary is, and always has been, regarded as a very serious offence that may involve considerable loss to a victim. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter for his own dishonest purposes leaves the victim with a sense of violation and insecurity. Even when the victim is unaware at the time that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place. The seriousness of the offence can vary almost infinitely from case to case, or the offence may be deliberately directed at the elderly or disabled or the sick." At para 48 the Court said: "A court should regard the seriousness of an offence contrary to s 112(1) of the Crimes Act as enhanced and reflect the enhanced seriousness in the quantum of the sentence if any of the following factors are present. Necessarily if more than one such factor is present, there is a cumulative effect on the seriousness and the need for appropriate reflection." First of all, relevantly, if the offence is committed whilst the offender is at conditional liberty.Secondly, the offender has a prior record particularly for like offences.(This paragraph has been disapproved by the Court of Criminal Appeal in R v McNaughton.) That the offence is committed at premises of the elderly or sick or disabled. And certainly that is the case in one of the offences, and I think that is sequence 39.And the multiplicity of the offences.In sentencing on multiple counts, regard must be had to the criminality involved in each. The authority there is Pearce v R (1998) 72 ALJR p 1416. It will of course be a requisite for a sentencing court to give appropriate weight to matters in mitigation as manifest in a particular case. These will include evidence of genuine regret and remorse and any rehabilitative steps taken by the offender. Whilst addiction to drugs and alcohol is a relevant circumstance for the Court to consider, it is not of itself a mitigating factor, and the Court there notes R v Henry. 33So far as the offender's participation in the Drug Court program, it is useful to note that the Drug Court program has three phases with a total minimum period of 12 months. This offender spent only two weeks on the program. Full details of the program requirements can be found on the Drug Court website. 34So far as his participation in the program is concerned, the Court has before it a report dated 30 April 2014 under the hand of Leona Neilson, Caseworker, and Jennifer Hinman, Clinical Nurse Consultant, regarding the offender. It says in part "Mr Cage was found to meet DSM-V, DSM-IV revised criteria for dependence on both cannabis and amphetamine type substances at the time of assessment. He describes a 13 year history of cannabis and amphetamine abuse, with amphetamines being his drug of choice". He has three children, a daughter and two sons, who are in the care of their mother. Mr Cage reports he is one of six siblings. He has four brothers and one sister. He reports that his older brother has had issues with dependency and is incarcerated. Mr Cage states that there are no other drug and alcohol issues in the family. Mr Cage's parents separated when he was two and he reports that his stepfather was abusive. He left home at an early age due to the unstable environment, was placed in and out of Juvenile Justice systems on multiple occasions from the age of 11 years. Mr Cage successfully completed year 10 whilst in the Juvenile Justice system. It also reports that he has obtained both a forklift and excavator's licence. He has previous experience working for marketing companies in a sales role before relapsing with drug use. Mr Cage engaged well in the first two weeks of his Drug Court program, attending to all his commitments. This focus was short-lived as Mr Cage failed to maintain any contact with the Hunter Adult Drug Court. He last reported contact on 25 July 2013. On 2 September 2013, Mr Cage appeared at the Drug Court and his Drug Court program was terminated. 35In summary she says "Mr Cage spent very little time engaged in his Drug Court program. He showed no determination or dedication to changing his criminal behaviour or substance dependence. It is unfortunate that Mr Cage failed to invest any time or effort in the program to enable him to achieve some positive life changes." 36The offender gave evidence and expressed remorse for his actions. He said he was overcome by feelings of failure. He had a relationship breakdown soon after he was released from custody. He was cooperative with police and he has given certain undertakings. 37The Court has before it a report of Anna Robilliard dated 6 November 2013. She is a forensic psychologist. The offender described his childhood to Ms Robilliard as being mixed; however, from the age of five when his mother formed a relationship with a man named Sean, who was unpredictable and violent in the home. He said that Sean took him on his first break enter at the age of seven. He also described being abused by Sean's brother when he was a child. The offender's schooling took place in juvenile detention centres. 38Ms Robilliard describes the offender as being fit and healthy, and that was consistent with his appearance in court. 39The sequence of events that led to the further offending whilst on the Drug Court program is particularly disturbing in that his partner was suffering morning sickness and asked him to go out for the day and leave her in the care of her mother. Apparently because of this he became distressed and reverted to a long-established, well entrenched habit of using drugs to alleviate his negative mood states. 40He was assessed as being in the high to moderate range of risk of reoffending. 41In summary, Ms Robilliard said that Joshua will need careful and consistent monitoring and support with regard to his drug use when he returns to the community, and an appropriate resource network. CRIMINAL RECORD 42 So far as his record is concerned he has numerous matters in the Children's Court. He was sentenced to a control order in 1998 for assault occasion actual bodily harm, larceny, break enter and steal and break enter with intent. 43He was sentenced to community service orders in 2000 for break enter and steal, for numerous offences.He was given a control order in November 2000 for break enter and steal.In November 2001 he was given a control order for nine months for break enter and steal.In 2003 he was given probation for 12 months for break enter with intent.In 2007 he was sentenced to three months imprisonment for larceny, 12 months for break enter and steal, stealing property from dwelling, being carried in conveyance, obtain property by deception, receiving.He was sentenced to three months for driving whilst disqualified and receiving in 2008.At Gosford District Court in 2010 he was sentenced to three years and six months imprisonment for possession a prohibited weapon, six months for driving whilst disqualified, four years for break enter and steal. 44At the time he received initial sentence for the offences before the Court today he was on parole for the offences that were dealt with at the Gosford District Court on 4 February 2010. 45This Court takes into account that record in accordance with the High Court's decision in Veen v R (No 2) as being relevant, not to increase the objective seriousness of the offences committed, but rather that retribution, deterrence and protection of society may indicate a more severe sentence is warranted. The Court there notes R v McNaughton [2006] NSWCCA at 242, especially paras 26, 27 and 28. 46So far as the s 23 considerations are concerned, that section provides that the Court has the power to reduce penalties for assistance provided to law enforcement authorities. In R v Cartwright (1989) 17 NSWLR at 243, Hunt and Badgery-Parker JJ said, at 252: "Frequently the only source of information about crime, actual or in contemplation, comes from other criminals, and it is in the public interest to encourage offenders to supply such information to authorities, including the police, and to give evidence against other offenders. Thus it has been held that the supply of full and frank information to the authorities is to be encouraged and appropriate rewards should be granted, regardless of the motive, that is, whether such assistance is made available by genuine remorse or simply self-interest. If the giving of assistance is motivated by genuine remorse or contrition, then even greater leniency may be extended to the offender under normal sentencing principles." 47In assessing the appropriate discount for assistance to authorities, the Court has regard to the decision of R v Ehrlich [2012] NSWCCA 38 and the decisions cited therein, particularly the judgment of Basten J. 48So far as serving a sentence in protection is concerned, in Sukkar, Howie J said: "It should now be accepted that an offender who has provided assistance will not necessarily be disadvantaged in the prison system, and if the offender wishes to assert otherwise, he or she should lead evidence of the fact." 49The Court sets out the discount which should apply for matters taken into account under s 23 of the Crimes (Sentencing Procedure) Act, thatis 15%, making a combined total discount of 40% for the utilitarian value of the pleas of guilty and the provision of assistance. 50So far as voluntary disclosure of unknown guilt, where an offender makes voluntary disclosures of involvement in a serious crime in respect of which the police have no knowledge, he is entitled to a significant added element of leniency in accordance with the principles set out in R v Ellis (1986) 6 NSWLR 603 at 604. 51The matters to which the so-called Ellis discount applies are sequences 41-46 in the matters before the Court today. 52So far as the deprived background of the offender is concerned, the circumstances that the offender has been raised in in the community, surrounded by alcohol abuse and violence, may mitigate the sentence because his moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. The authority there is Bugmy v R (2013) 87 ALJR 1022 at 40. 53The effects of profound deprivation do not diminish over time and should be given full weight in determining the sentence in every case should be accepted - again, Bugmy. The background of the kind that may leave a mark on a person throughout life and compromise the person's capacity to mature and learn from experience remains relevant even where there has been a long history of offending.Attributing full weight in every case is not to suggest that it has the same mitigatory relevance for all the purposes of punishment - that is Bugmy at para 43. 54As I have already said, the offender's Drug Court program was terminated on 2 September 2013, therefore the sentences in this matter which he received at initial sentence are governed by s 12 of the Drug Court Act. 55The evidence is the offender has spent 515 days in custody since coming onto the Drug Court program. I need to take all this time into account. In doing that alone there is a prospective agreed start date of 3 January 2013, being the earliest date that the Court is likely to be able to exercise its discretion in relation to the commencement of the sentence. THE S 58 ISSUE 56Section 58 of the Crimes (Sentencing Procedure) Act provides: "(1). The Local Court may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than five years after the date on which the existing sentence ...began." (4)"existing sentence" means the unexpired sentence, and includes any unexpired sentence or unbroken sequence of expired sentences with which the unexpired sentence is being served consecutively, (or partly concurrently and partly consecutively). 57Perhaps as a preliminary issue it should be mentioned that the Drug Court regularly imposes sentences on Drug Court participants. Those sentences are always suspended whilst the participant is engaging in the Drug Court program. In the majority of cases the initial sentences are set aside at final sentence and a lesser sentence imposed with the participant being given the benefit of consideration of s 12 of the Drug Court Act, or in the case of a successful graduate, a non-custodial sentence is imposed. 58The sentence imposed on the offender at Gosford District Court on 4 February 2010 commenced on 18 March 2009, that is, the 2010 sentence, I will refer to that as the 2010 sentence, and expired on 17 June 2014. A total term of five years three months. 59The effect of s 58, in my view, means that any final sentence, that is under s. 12 of the Drug Court Act, imposed by this Court as a result of initial sentence on 15 July 2013, as it was exercising the jurisdiction of the Local Court, cannot be even partially cumulative with the 2010 sentence so as to extend beyond 17 June 2014, without breaching s 58. 60The Court notes s 15(1) of the Drug Court Act says that the sentences that may be imposed by the Drug Court under this Part are: "(b) in the case of a summary offence...any penalty that could have been imposed by the Local Court had the offence been dealt with summarily by the Local Court." 61On the other hand, if that initial sentence is backdated to commence prior to 17 June 2014, (the expiration date of the 2010 offence or sentence), that sentence cannot extend beyond 17 June 2014. 62It is clear that the offender's sentence should be backdated to give him the benefit of the time that he has spent in custody prior to the expiration of the parole period for the 2010 sentence, although it is noted that backdating and the extent thereof is discretionary. 63So far as the offences that are to proceed to final sentence today and were not part of the initial sentence on 15 July 2013, the Court is exercising the jurisdiction of the District Court and the Local Court. 64Section 15 of the Drug Court Act provides that the provisions of s 58 of the Crimes (Sentencing Procedure) Act do not apply to a sentence imposed on a person under this Act, (that is the Drug Court Act), by the Drug Court as referred to in subs (1)(b) if that sentence is imposed for an offence committed whilst the person was participating in a program under this Act. 65It should be noted that s 12 of the Crimes (Sentencing Procedure) Act does not allow a suspended sentence to be imposed if the offender is undergoing a sentence that is not the subject of the current order.The Drug Court does not face a similar limitation when sentencing a participant at initial sentence because that would exclude any persons subject to parole, intensive corrections order or home detention from participating in the program. 66In order to deal with the present matter in an appropriate way, it is necessary to impose a fresh sentence with respect to the sentences imposed at initial sentence and then to include those offences not dealt with at initial sentence. However, where offences were committed before initial sentence was imposed, that is, pre-program offences, and not the subject of indictment, they are offences 57-65 pursuant to s 192E of the Crimes Act, of dishonestly obtaining financial advantage by deception,the Court will then impose a final sentence with respect to the on-program offences, including the pre-program offences, sequences 39 and 40 being the subject of indictment, and impose an aggregate sentence that is partly concurrent and partly cumulative upon the fixed sentence imposed for the pre-program offences. In that way there is no conflict with s 58, in an endeavour to strike an appropriate balance as to the totality of the offences. 67In doing that, the Court will take into account the over-arching principle with regard to the totality of combined sentences, being that set out in R v JRD [2007] NSWCCA 55 at 33. When a court is sentencing for multiple offences, before it imposes sentence for any one offence, it will have considered the outcome for all offences. 68So far as backdating the sentence is concerned, s 47(2) of the Crimes (Sentencing Procedure) Act allows the Court to direct that a sentence is taken to have commenced before the date on which the sentence is imposed, that is, backdated, and then s 47(3) provides, in deciding the day on which the sentence is taken to have commenced, the Court must take into account any time which the offender has been held in custody in relation to the offence to which the sentence relates. 69This does not oblige the Court to backdate a sentence, but the Court must take into account the pre-sentence custody served by an offender in relation to the offence when deciding whether it should commence the sentence at or prior to the sentence date. In R v Callaghan (2006) 160 ACrimR 145, 21-23, Simpson J said, at 22 23: "A discretion exists. There is no clear rule which would govern all cases. Circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. It would, in my opinion, in some cases be unfair not to backdate to some point, not necessarily the date of revocation of parole, before the expiration of the earlier parole period." 70It is this Court's view that there should be a balance struck between the time this offender has spent in custody awaiting sentence in this matter and the balance of parole being served by the offender with respect to the 2010 sentence. 71In my view, the appropriate commencement date would be 15 July 2013, the date of the initial sentence. Conclusion 72The Court must now determine the final sentence. It can either make an order setting aside the initial sentence and re-sentencing, or confirm the initial sentence. In my view the initial sentence should be confirmed as he lasted barely two weeks on the program. However, bearing in mind the issues involved in s 58 of the Crimes (Sentencing Procedure) Act which have been outlined, it is necessary to set aside the initial sentences. 73There are a number of very valid reasons that have been put for the Court to substantially reduce the sentences to be imposed in this matter. 74There is no dispute that the sentences with respect to the pre-program offences that were dealt with summarily, and the on-program offences (along with the pre-program offences dealt with on indictment), should be accumulated. 75I am also of the view that, as the on-program offences were committed whilst the offender was on conditional liberty in the community, the sentence should express not only personal but general deterrence. 76So far as special circumstances are concerned, this is a matter where I have been asked to find special circumstances, and this is not contested, in view of the need for accumulation and the obvious need for ongoing supervision on parole. 77There are a number of very valid reasons that have been put to the Court to substantially reduce the sentences to be imposed in these matters. He has given evidence indicating that he wishes to change his life. He has said that he wants to enter residential rehabilitation on his release. In his sentence in 2010 he was given the benefit of an extended parole period. He breached this parole and came under the Drug Court program to address his drug problem. Each opportunity he was given resulted in further offending, involving more victims. 78The Court must be cautious when now assessing this offender's wishes to rid himself of his drug addiction. That is not to say that he should not be encouraged to try to address his addiction, and thus his offending behaviour. However, it is not as if the Court can be confident that on parole on this occasion he will successfully address his drug addiction. 79Lastly, the Court needs to have regard to the issues of totality in determining a just and appropriate sentence. 80The task of the Court is to ensure that the overall sentence is neither too harsh nor too lenient. Just as totality is applied to avoid a crushing sentence, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentence is sufficient. The Court there notes R v KM [2004] NSWCCA 65 at 55. 81The following sentences will be imposed. With respect to sequence 1, eleven months. Sequence 2, five months. Sequence 3, four months. Sequence 4, two months. Sequence 5, one month. Sequence 6, one month. Sequence 7, eleven months. Sequence 8, four months. Sequence 9, four months. Sequence 10, four months. Sequence 11, four months. Sequence 12, four months. Sequence 13, three months. Sequence 14, three months. Sequence 15, three months. Sequence 16, eleven months. Sequence 17, eleven months. Sequence 18, one month. Sequence 19, one month. Sequence 20, eleven months. Sequence 21, eleven months. Sequence 22, eleven months. Sequence 23, three months. Sequence 24, three months. Sequence 25, six months. Sequence 26, 27, 28 are each confirmed. Sequence 29, three months. Sequence 30, one month. Sequence 31, eleven months. Sequence 32, I will leave for the moment. Sequence 57, one month. Sequence 58, one month. Sequence 59, one month. Sequence 60, one month. Sequence 61, two months. Sequence 62, two months. Sequence 63, one month. Sequence 64, one month. Sequence 65, one month. 82All those sentences will be fixed terms. They will be concurrent. All fixed terms, all concurrent, commencing on 15 July 2013. 83Sequence 32 is one month. The drugs to be destroyed. Sequence 33, eighteen months. Sequence 34, fifteen months. Sequence 35 is three months. Sequence 36, twenty-two months. Sequence 37, seven months. Sequence 38 is twelve months. Sequence 39 is twenty-two months. Sequence 40 is four months. Sequence 41 is fifteen months. Sequence 42, fifteen months. Sequence 43 is four months. Sequence 44 is two months. Sequence 45 is one month. Sequence 46 is fifteen months. Sequence 47 is four months. Sequence 48 is three months. Sequence 49 is four months. Sequence 50 is four months. Sequence 51 is three months. Sequence 52 is four months. Sequence 53 is four months. Sequence 54 is six months, and disqualified from holding or obtaining any licence under the Road Transport legislation for a period of two years. Sequence 55 is three months. Sequence 56 is marked withdrawn. Sequence 66, seven months. 84With respect to each of the pre-program offences, the Court is of the view that, except for sequences 39 and 40, had those matters been dealt with at initial sentence, the aggregate sentence would not have changed. Therefore those sentences will form part of the totality of the sentences imposed at initial sentence, and I have already announced those. For the record, those are sequences 57-65. 85The Court has regard to the provisions of s 53A of the Crimes (Sentencing Procedure) Act.The aggregate sentence that the Court imposes in relation to the on-program offences and the pre-program offences dealt with on indictment which is sequences 39 and 40, consists of a non-parole period of two years and six months commencing on 14 February 2014 and expiring on 13 August 2016. There is a balance of two years commencing on 14 August 2016 and expiring on 13 August 2018. 86The Court sets an extended parole period to enable the offender to address his drug issues. The Court would expect that the offender would take measures in custody to do courses available in custody to address his drug addiction issues. 87Now, you will be eligible for parole on 13 August 2016, Mr Cage, do you understand that? OFFENDER: Yes I do. HIS HONOUR: It does not mean you get it. OFFENDER: Yep. 88It means that the State Parole Authority will consider you about three months prior to that, and reports will commence to be prepared. That means that between now and then, if you want to do everything you possibly can to ensure that you will be released at that time, you will have to do courses, and I do not just mean things like Getting Smart. There are substantial courses available in custody for people such as yourself, and you have to do everything you possibly can to make sure that you are released on parole on that date. If you use whilst you are on parole, you have a further two years to serve. Understood? OFFENDER: Yes. HIS HONOUR: Good luck. OFFENDER: Thank you. DISCUSSION AS TO PARTICULARITY OF COMMENCEMENT DATES IN THE ABSENCE OF THE OFFENDER 89I will amend that to fixed sentences to commence on 15 April 2013. WINCH: Yes your Honour, thank you, and that's the sequences 1 through 65 and 57 through - yes, those two sequences. And nothing else needs to be changed. HIS HONOUR: Thank you. 90WOODWARD: Your Honour, just as a matter of completeness, there was a schedule in which compensation was sought by the Crown that was handed up at initial sentence, and no orders were made at that point. Just so that I can have a complete record for my file, my instructions are that I do press for that order. HIS HONOUR: Thank you. I didn't have a note of that. 91WOODWARD: My court result from that day, your Honour, although it doesn't appear in the transcript, I accept that, is "Compensation schedule tendered and order formally sought by the Crown; his Honour indicates this will be considered at final sentence." HIS HONOUR: Is that in issue? 92WINCH: Your Honour, I oppose it on the basis of utility as much as anything else, your Honour. It comes to about $7,000, doesn't it? 93WOODWARD: Approximately, Your Honour. I haven't added them up, but I do have the schedule. 94WINCH: And given the length of the prison sentence that's to be imposed and things of that nature, I simply oppose it on those grounds. 95HIS HONOUR: Thank you. I note your opposition. The orders will be made in accordance with the schedule.Make sure that there is a schedule on file. WOODWARD: I will provide another copy to the registry in case-- IN THE PRESENCE OF THE OFFENDER 96Mr Cage, I just wanted to confirm with you that I said that the fixed sentence I imposed will commence in July 2013. I have changed that to be April 2013. It makes no difference to your date of release. OFFENDER: Yep. 97Claims are made for compensation in the sum of $1,346.70, $6,095.83, $114.65 and $580. Bearing in mind the totals of the amount taken, it would seem to be that you have a very good deal there.So compensation orders will be made.That schedule will be marked as exhibit B and compensation orders will be made in accordance with that. 98Do you have any questions? OFFENDER: No. Thank you. ********** 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: 25 November 2014