Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Boney v R [2015] NSWCCA 291 Hearing dates: 19 November 2015 Date of orders: 27 November 2015 Decision date: 27 November 2015 Before: Gleeson JA [1]; Bellew J [2]; RS Hulme AJ [3] Decision: (i) Grant leave to appeal; (ii) Dismiss the appeal; (iii) Confirm the sentence imposed by Colefax DCJ on 6 February 2015; (iv) Refer the Applicant to the Drug Court to determine whether the Applicant should be the subject of a compulsory drug treatment order. Catchwords: CRIMINAL LAW – appeal – sentence not manifestly excessive – objective seriousness – referral to Drug Court – drug treatment order Legislation Cited: Mental Health Act 2007 (NSW) Drug Court Act 1998 Criminal Appeal Act 1916 Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Category: Principal judgment Parties: Regina Jimmaley Boney Representation: Counsel: H Baker (Crown) P Coady (Applicant) Solicitors: Solicitor for Director of Public Prosecutions Legal Aid (NSW) File Number(s): 2013/311717 Publication restriction: No Decision under appeal Court or tribunal: District Court NSW Jurisdiction: Criminal Date of Decision: 06 February 2015 Before: Colefax DCJ File Number(s): 2013/311717 Judgment 1. GLEESON JA: I agree with RS Hulme AJ. 2. BELLEW J: I agree with RS Hulme AJ. 3. RS HULME AJ: On 6 February 2015 Judge Colefax SC sentenced the above named Applicant in respect of an offence of aggravated break enter and steal. The maximum penalty for that offence is imprisonment for 20 years and there is a standard non-parole period of 5 years. His Honour was asked to take into account an offence of attempting to steal a motor vehicle. 4. The sentence imposed was of imprisonment for 4 years and 10 months including a non-parole period of 2 years and 10 months, both such periods commencing on 16 August 2014. 5. The circumstances of the offending were that between about 11pm on 11 October 2013 and 8.30am on the next day, the offender broke into a 2 storey residential premises by forcing access through a window. A married couple and 3 children lived in the premises and the Applicant knew they were present at the time. A wallet containing identification cards, a handbag, and an i-phone were stolen. 6. A motor vehicle parked in the driveway of the house was also broken into. The boot was found opened, a front door was not fully closed, and the ignition barrel of the vehicle was damaged. 7. The Applicant was on parole at the time, having been released from custody on 23 July 2013. He pleaded guilty at the first available opportunity and received a 25% discount for doing so. 8. The Applicant was born in April 1988, and is an Aboriginal. He has an extensive criminal history commencing in 2003. Colefax DCJ recorded that in the last 11 years the Applicant had been in custody for all but 18 months. 9. The Applicant commenced participating in the use of cannabis at age 10, alcohol at age 13, and heroin at age 12 or 13. He commenced intravenous injections of heroin and using methylamphetamines at about 18 or 19. His education is virtually non-existent and he has no history of any useful work. 10. Colefax DCJ remarked that the Applicant had a long history of mental disturbance, that he has borderline personality disorder and there are signs of psychotic episodes which may be connected with schizophrenia from which many members of his family suffer and/or may be caused by substance abuse. 11. Before His Honour was a deal of evidence as to the Applicant's subjective circumstances. This material included a report to the State Parole Authority dated 16 October 2013, a report from Dr Gordon Elliott, psychiatrist, dated 24 October 2014, remarks of Madgwick DCJ dated 16 September 2011 when his Honour imposed on the Applicant the sentence that led to the Applicant being on parole at the time of the offence for which he was sentenced by Colefax DCJ, and a report from the Family and Community Services Department. 12. The first of these records that the Applicant was admitted to parole on 23 July 2013, that his initial response to parole was satisfactory but that drug screening conducted on 19 September 2013 was positive for amphetamine and methylamphetamine. Parole was not then revoked and the Applicant continued to have the support of his partner and the mother of his child and an indigenous support worker. On 14 October 2013 the Applicant said that he had attended the premises of Odyssey House but had been unable to contact anyone there. On 16 October the Applicant was arrested in respect of the offences dealt with by Colefax DCJ. 13. Dr Elliott met with the Applicant on 7 October 2014 for about an hour. Dr Elliott's conclusions included that the Applicant did not have a mental illness as defined in the Mental Health Act 2007 (NSW), may have mild developmental delay, but more probably his intellectual functioning was in the low or borderline normal range, impacted by his lack of schooling, and he was not developmentally disabled. He had used illicit substances as a primary coping strategy since childhood. Unsupported, his risk of relapse into substance abuse and thence criminal recidivism appears moderate to high. At the least he would need a 12 to 18 month residential rehabilitation program. 14. To Dr Elliott the Applicant had expressed frustration about finding the means to change his life and, although he had participated in a number of drug and alcohol programs while in custody, also frustration with them as insufficient for his needs. Dr Elliott recorded that the Applicant appeared motivated to achieve long term abstinence but continued to use substances whilst in custody. The Applicant's custodial record dated October 2014, however, records his last failed urine test as occurring in September 2012. 15. Madgwick DCJ sentenced the Applicant for an unprovoked attack on a security guard, stealing his vehicle and then burning it. His Honour's remarks reveal he had a deal of sympathy for the Applicant, informing him that the non-parole period being fixed – it was 2½ years in a 5½ years sentence - was well below normal in order to provide opportunity for intensive supervision in the community for a substantial period. His Honour made extensive reference to a psychological report which provided considerable detail of Mr Boney's disadvantaged background, remarked that Mr Boney's intelligence was in the extremely low range but quoted a remark of Mr Boney that "Crime is all I know". His Honour observed that because of Mr Boney's mental problems he was not disposed to afford general deterrence much weight but that personal deterrence and protection of the community loomed large. His Honour remarked that the Applicant was embarrassed at not being able to read and urged him to ask for education in prison. 16. Despite the Applicant's record his Honour found special circumstances on the ground that the Applicant's age merited a longer than usual period on parole. The Applicant's aboriginality and borderline personality disorder may also have influenced his Honour in finding special circumstances. 17. The grounds of appeal are: 1. The sentencing judge erred in his assessment of the objective seriousness of the offending. 2. The sentence imposed was manifestly excessive. 3. The sentencing judge erred in failing to consider the referral of the Applicant for a compulsory drug treatment order. Ground 1 1. The foundation for this ground lies in remarks, and the order of remarks made by Colefax DCJ. After reciting the circumstances of the offending, his Honour continued: The offence is aggravated by the fact that, at the time it was committed, the Offender was on parole. I have had the benefit of reading the remarks on sentence of his Honour Acting Judge Madgwick QC. The offence for which he was sentenced on that occasion was also a serious matter and involved gratuitous violence by this Offender. 1. Drawing attention to remarks of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27], counsel for the Applicant submitted that his Honour had erred. Those remarks are: The [standard non-parole period] requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness" [s 54A(2)]. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. 1. Colefax DCJ's remarks were given ex-tempore on the day of and shortly after the conclusion of the sentencing hearing and allowance must be made for infelicities of expression. That said, and while I do not regard the matter as free from doubt, his Honour's remarks do lead to the conclusion that he took into account in assessing the objective seriousness of the offence that the Applicant was on parole at the time. Ground 1 is made out. Ground 2 1. Since attaining the age of 18, the Applicant has been convicted of, inter alia, the following offences. July 2006 Aggravated breaking and entering and committing a serious indictable offence (8 counts) June 2008 Taking and driving a conveyance without the consent of an owner August 2008 Possessing implement to enter or drive a conveyance. March 2009 Larceny. December 2009 Driving a conveyance taken without consent of the owner. June 2010 Having goods in custody suspected of being stolen. August 2010 Damaging property by fire. August 2010 Aggravated robbery 1. The above table, limited as it is to offences committed since the Applicant turned 18 demonstrates that he is a recidivist. That history and the Applicant's subjective circumstances referred to above indicate that further imprisonment is unlikely to be of any benefit to him and that he desperately needs some other sanction against the lifestyle he has followed. However, no such practicable alternative was the subject of any evidence placed before Colefax DCJ and there are community interests quite separate from the interests of the Applicant to be served in the course of sentencing. 2. When to that conclusion is added the fact that the subject offence was committed while on parole, it is impossible to conclude that the sentence imposed was manifestly excessive. This ground fails. Ground 3 1. Consideration of this ground requires attention to a number of provisions of the Drug Court Act 1998. Section 18B, which appears in Part 2A of the Act, entitled "Compulsory Drug Treatment Detention", so far as is presently relevant provides:- 1. This section applies to such courts as are prescribed by the regulations. 2. It is the duty of a court to which this section applies that sentences a person to imprisonment or which, on determining an appeal, confirms a sentence if imprisonment imposed on the person by some other court (whether or not on the same terms as the other court): 1. To ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender, and 2. If so, to refer the person to the Drug Court to determine whether the person should be the subject of a compulsory drug treatment order. 3. (2B) However, if the person whose sentence is confirmed by the appeal court is not already the subject of a compulsory drug treatment order, the duty imposed by this section applies to the appeal court, whether or not the court that imposed the sentence confirmed by the appeal court referred the person to the Drug Court under this section. 1. The duty imposed on a court by this section is to be exercised as soon as practicable after the person is sentenced to imprisonment or the appeal is dealt with. 2. (5) No appeal lies against a court's decision to refer or not to refer a person to the Drug Court for a determination as to whether the person should be the subject of a compulsory drug treatment order. 1. For the purposes of s 18B(1), the District Court at Parramatta where the Applicant was sentenced and the Court of Criminal Appeal have been prescribed by the Regulations. 2. The terms of s 18B(2) and (3) make it clear that the obligations imposed by s 18B on a sentencing court are to be fulfilled after it has imposed a sentence. Consequently compliance with the section is not required prior to sentence and non-compliance cannot affect the validity or correctness of any sentence imposed. Accordingly as an attack on the sentence imposed by Colefax DCJ this ground fails. Other Matters 1. The success of ground 1 means that it falls to this Court to consider what is an appropriate sentence for the Applicant's offence and circumstances. Regard must also be had to the terms of s 6(3) of the Criminal Appeal Act 1916 which provides:- On an appeal under s 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal. 1. I have summarised above the objective features of the Applicant's offending and also the evidence of subjective factors that was before Colefax DCJ. There was no further material as to those matters that was before this Court. While Colefax DCJ's remarks on sentence lead to the conclusion that his assessment of the objective seriousness of the Applicant's offending was influenced by his being on parole, I do not regard that assessment as incorrect. The building broken into was a dwelling house and not some other building and there were 5 persons, including children, inside. The criminality was deliberate. 2. I am not persuaded that some sentence of greater or lesser severity than that imposed by Colefax DCJ was warranted and in those circumstances, notwithstanding the error identified, the appeal should be dismissed. Given the Applicant's circumstances and, as I have concluded, the existence of error, I would grant leave to appeal. 3. Notwithstanding the conclusion that Ground 3 fails, because this Court is one prescribed for the purposes of s 18B, it is necessary to give further attention to the terms of that section and the definition of eligible convicted offender. 4. "Eligible Convicted Offender" is defined in s 5A as:- 1. A person is an eligible convicted offender if: 1. The person is convicted of an offence, other than an offence referred to in subsection (2), and 2. Except as provided for by subsection (1A), the person has been sentenced to a term of imprisonment for the offence to be served by way of full-time detention and at the time that the sentence was imposed: 1. The unexpired non-parole period of the sentence was a period of at least 18 months, and 2. The unexpired total sentence was a period of not more than 6 years, and 1. [repealed] 2. The person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed by the regulations, and 3. The facts in connection with the offence for which the person has been sentenced together with the person's antecedents and any other information available indicate that the offence was related to the person's long-term drug dependency and associated lifestyle, and 4. The person satisfies such other criteria as are prescribed by the regulations. 5. (1A) Subsection (1)(b) does not present a person whose parole order has been revoked from being an eligible convicted offender if the person is a relevant person within the meaning of section 18BA (State Parole Authority to refer certain offenders whose parole is revoked to Drug Court). 1. A person is not eligible convicted offender if: 1. The offence for which the person has been convicted involved the use of a firearm, or 2. The person has been convicted at any time of any of the following: 1. Murder, attempted murder or manslaughter, 2. Sexual assault of an adult or child or a sexual offence involving a child, 3. Any offence involving the violent use of a firearm, 4. An offence under section 23(2), 24(2), 25(2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity or large commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act, 5. Any offence prescribed by the regulations for the purposes of this section. 1. A person is not an eligible convicted offender if, in the opinion of the Drug Court: 1. The person suffers from a mental condition, illness or disorder that: 1. Is serious, or 2. Leads to the person being violent, and 1. The mental condition, illness or disorder could prevent or restrict the person's active participation in a drug treatment program. 1. Counsel for the Applicant submitted that the Applicant was an eligible convicted offender and there can be little or no doubt that he fulfils many of the criteria: (i) The sentence imposed by Colefax DCJ meant that S 5A(1)(b) was satisfied; (ii) Even at the date of this Court's decision those criteria still are. The expiration of the non-parole period fixed by Colefax DCJ on 15 June 2017 means it has a little over 18 months still to run and the unexpired total sentence was less than 6 years; 1. (iii) The Applicant had a long dependency on the use of prohibited drugs; 2. (iv) The circumstances of the offence indicated that it was related to the Applicant's long term drug dependency; and 3. (v) The matters referred to earlier in these reasons indicate that the subject offence was related to the Applicant's long-term drug dependency; 4. (vi) Regulations have prescribed criteria as envisaged by s 5A(1)(f). The only one of relevance would seem to be regulation 5 relating to the Applicant's usual place of residence and he would seem to fulfil that requirement; 5. (vii) The Applicant's criminal record indicates that he is not disqualified by most of the paragraphs in s 5A(2), although the evidence is not sufficient for a positive conclusion so far as paragraph (b)(iii) is concerned; 6. (viii) The issues raised by s 5A(3) are for the decision of the Drug Court. 1. However, there is no need for this Court to come to a concluded view on all of these matters. Section 18B merely requires a sentencing Court (or this Court on appeal) "to ascertain whether there are grounds on which the Drug Court might find the person to be an eligible convicted offender". I am satisfied that this requirement is fulfilled and accordingly that an order should be made under s 18B2(b). 2. It remains to mention one other matter. Evidence put before the Court showed that the Applicant had been referred to the Drug Court prior to him being committed for sentence and that he was then judged by that Court to be ineligible. However, it seems clear that that referral was pursuant to Part 2 of the Drug Court Act and not Part 2A in which s 18B appears and that referral is presently irrelevant. 3. Accordingly, I propose the following orders:- (i) Grant leave to appeal; (ii) Dismiss the appeal; (iii) Confirm the sentence imposed by Colefax DCJ on 6 February 2015; (iv) Refer the Applicant to the Drug Court to determine whether the Applicant should be the subject of a compulsory drug treatment order. ********** 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: 27 November 2015