Sales v R [2014] NSWDC 280

District Court New South Wales

Medium Neutral Citation: Sales v R [2014] NSWDC 280 Hearing dates: 5 August 2013; 3 October 2013; 31 January 2014; 4 April 2014 Decision date: 19 May 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: (1) Appeals against sentence allowed. (2) Sentences imposed in the Local Court varied and suspended. (3) Good behaviour bond for 18 months imposed. Catchwords: CRIMINAL LAW - appeal against sentence - conditional adjournment - demonstrated intention to rehabilitate - discrepancies in compliance with conditions explained - pre-sentence report - appropriate for sentences to be varied and suspended - conditional good behaviour bond Legislation Cited: Crimes Act 1900 (NSW), ss 94, 156, 189, 112(1)(a), 192E(1)(a) Crimes (Appeal and Review) Act 2001 (NSW), s 20(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11,12 Category: Sentence Parties: Damien Sales (appellant) Director of Public Prosecutions (respondent) Representation: Counsel: Solicitors: M Bladwell (Legal Aid NSW) (appellant) A Cheung (Director of Public Prosecutions NSW) (respondent) File Number(s): 2012/003232022012/00346441 Decision under appeal Court or tribunal: Local Court Date of Decision: 19 April 2013 Before: Railton LCM File Number(s): 2012/00323202; 2012/00346341

Judgment 1. On 5 August 2013 I delivered a judgment adjourning Mr Sales's sentence appeal. I imposed certain conditions for the adjournment. The adjournment was under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Not all of the conditions have been fulfilled for various reasons but I am satisfied that Mr Sales has demonstrated that he is intent on rehabilitating himself. 2. Mr Bladwell, who appears for him today, pointed to the fact that his client had not re-offended and was in a steady relationship. His client has also secured employment and had maintained reasonable contact with the Probation and Parole Service. There was good reason for him at not attending Alcoholics Anonymous. As Mr Bladwell said his client has accepted the opportunity which I have offered him. Mr Bladwell informed me that his client spent about 10 months and two days in custody and proposed that I should dispose of the appeal by altering the sentences in various respects and withdrawing one of the appeals. 3. Mr A Cheung, who appears for the Respondent to the appeal - the Director of Public Prosecutions - acknowledges fairly that a case has been made out for Mr Sales's sentences to be suspended. He referred me to the Probation and Parole Service and more recent compliance. He realistically accepted that compliance was not perfect but the discrepancies were explained. The compliance was reasonable. 4. For these reasons I propose to allow Mr Sales's appeals and to in effect impose an 18 months suspended sentence. I will do that by making the following formal orders. 5. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW) I determine these appeals against sentences in the following ways. 6. As for exhibit A concerning the offence under s 94 of the Crimes Act 1900 (NSW), I vary the sentence in the following respect. I make an order suspending the execution of the whole of the sentence for nine months and I direct that Mr Sales be released from custody on condition that he enters into a good behaviour bond for nine months. I will set out the conditions later on. In respect of the offence against s 156 of the Crimes Act I make the same order except that the sentence is 18 months and that will be suspended. In respect of the offence against s 192E(1)(a) I note that that appeal has been withdrawn and I give leave for it to be withdrawn. 7. Turning to exhibit B, in respect of the offences numbered 1 to 3 against s 192E(1)(a), in respect of each offence I determine the appeal against sentence by varying the sentence. In respect of each sentence, it is varied by reducing it from four months to three months to date from 24 April 2013 until 23 July 2013. In respect of the offences numbered 4 to 5 against s 192E(1)(a), I determine the appeals against sentence by varying the sentences. Each sentence is reduced to three months commencing 24 April 2013 and expiring 23 July 2013. In respect of the offence against s 189 of the Crimes Act, I vary that sentence under s 12 of the Crimes (Sentencing Procedure) Act by suspending the execution of the whole of the sentence for six months and directing Mr Sales to be released from custody on condition that he enters into a good behaviour bond for 6 months. I make the corresponding orders for the two remaining offences on exhibit B, a further offence under s 189 of the Crimes Act and an offence against s 112 (1)(a) of the Crimes Act. 8. The conditions of the good behaviour bond will be these: 1. That Mr Sales be of good behaviour. 2. That he inform the Registrar of the District Court at Gosford of any change in his residential address. 3. That he attend court if called upon to do so. 4. That he accept supervision from Corrective Services Community Corrections and any reasonable recommendation or direction from an officer of that service including the following specific four areas: referral to Community Corrections programs aimed at relapse prevention, further direction and monitoring of attendance at Alcoholics Anonymous, monitoring of employment, monitoring of relationship and financial status. HIS HONOUR: Now gentlemen, I think that disposes of it. I have taken those four topics from the most recent pre-sentence report. EXHIBIT #C PRE-SENTENCE REPORT DATED 12/05/14 TENDERED, ADMITTED WITHOUT OBJECTION. HIS HONOUR: Now my associate will go and type up those orders. She'll type them up here and now and then she'll print them and bring them back and I'll have to ask you gentlemen to stay because it's a bit complicated and I want to be sure that I've got it right. Now Mr Sales, your client has his hand up your client wants to say something. OFFENDER: ..(not transcribable).. HIS HONOUR: What time? OFFENDER: I've got to be there by 5. HIS HONOUR: Where is it? OFFENDER: I don't know that's the problem. I think Town Hall or something so. HIS HONOUR: All right well we'll probably have you away here by 4 o'clock. So you're not far from Town Hall all right. Mr Sales your appeal has been allowed do you understand? OFFENDER: Yep. HIS HONOUR: And I've suspended most of the sentences as Mr Bladwell asked for and that's because of what you've been doing since you've been to court. You've had a lot on your plate including what's happened to your father. And it's up to you to keep up what you've been doing with particularly your employment that's very good. Are you still in that job? OFFENDER: Yep. HIS HONOUR: Now you probably know the effect of a suspended sentence and Mr Bladwell will explain it to you again. Have you had one before? OFFENDER: Yeah I've got a good understanding about it. HIS HONOUR: If you breach it there's nothing much I can do. The law is really strict. It's not like an ordinary good behaviour bond. I pretty well have to send you in. So it's up to you. Is that your partner sitting in court there? OFFENDER: Yep. HIS HONOUR: The reason I've given you this chance is to let you get yourself your life back in order and you're showing really good signs of that . How old are you now? OFFENDER: 25. HIS HONOUR: That's what I thought. And I'm putting the community at risk. I've said that to you before because you've got a criminal record, a pretty extensive one and you've made a real nuisance of yourself. So it's not just me being good hearted to you, somebody's paying for this and that's the community. They're at risk of having you out there. But I've got some confidence that you'll just carry on working, carry on with your relationship and get on with your life. All right, so good luck.