Bushara v Regina

[2006] NSWCCA 8

CITATION:	Bushara v Regina [2006] NSWCCA 8
HEARING DATE(S):	19/01/2006
JUDGMENT DATE:	6 February 2006
JUDGMENT OF:	Basten JA at 1; Howie J at 2; Hall J at 47
DECISION:	Application is allowed and the sentence imposed in respect of the offence of 15 March 2004 is quashed. In lieu the applicant is sentenced to a non-parole period of 2 years to date from 15 June 2005 and to expire on 14 June 2007, the date upon which the applicant is eligible to be released to parole. There is to be a balance of term of 18 months to commence from 15 June 2007.
CATCHWORDS:	Criminal Law - sentences imposed by Drug Court after termination of Drug Court programme - whether sentences manifestly excessive having regard to pre-sentence custody, the period spent by the applicant in the programme, sanctions imposed on the applicant and period spent in rehabilitation centre - whether non-parole period excessive having regard to these matters - Appeal - material placed before the Court for purposes of resentencing - whether it has any relevance or weight.
LEGISLATION CITED:	Crimes Act 1900 - s 112(2) Drug Court Act 1998 Crimes (Sentencing Procedure) Act 1999 - ss 21A, 24(a), 44 Freedom of Information Act 1989
CASES CITED:	R v Tadrosse [2005] NSWCCA 145 R v Johnson [2004] NSWCCA 76 R v Hathaway [2005] NSWCCA 368 R v Ponfield (1999) 48 NSWLR 327 R v Henry (1999) 46 NSWLR 346 R v Newman and Simpson (2004) 145 A Crim R 361 R v Fowler (2003) 151 A Crim R 166 R v Youkhana [2005] NSWCCA 231 Gonzalez v R [2006] NSWCCA 4
PARTIES:	Bushoy Bushara v Regina
FILE NUMBER(S):	CCA 2005/1867
COUNSEL:	J. Girdham - Crown A. Francis - Applicant
SOLICITORS:	S. Kavanagh - Crown S. O'Connor - Applicant
LOWER COURT JURISDICTION:	Drug Court
LOWER COURT FILE NUMBER(S):	2003/0047
LOWER COURT JUDICIAL OFFICER:	Dive SJ

2005/1867

BASTEN JA
HOWIE J
HALL J

MONDAY 6 FEBRUARY 2006

Bushoy BUSHARA v Regina

Judgment

1 BASTEN JA: I agree with Howie J.

2 HOWIE J: The applicant, Bushoy Bushara, entered the Drug Court programme on 5 March 2003. On 15 March 2004, while still on that programme, he committed an offence of aggravated break enter and steal contrary to s 112(2) of the Crimes Act 1900. That is an offence for which a maximum penalty of imprisonment for 20 years is prescribed. There is a standard non-parole period set for that offence of 5 years. Dive SJ sentenced the applicant in the Drug Court to a non-parole period of 2 years and 6 months and a balance of the term of 1 year and 6 months. That sentence was made cumulative to other sentences imposed upon the applicant by the Judge so that it commenced on 15 June 2005 and the applicant will be eligible to be released to parole on 14 December 2007. When imposing that sentence the Judge took into account a matter on a Form 1 being an offence of take and drive a conveyance. The applicant seeks leave to appeal against that sentence.

3 The facts of the offence can be stated very briefly. On 15 March 2004 at about 6 am the residents of a home in Stanhope Garden were still asleep. One of them was awoken by the sound of a car revving inside the garage. The resident observed that the garage door was partially open and went to find out what was happening. He opened the garage door further and observed the applicant trying to reverse a motor vehicle out of the garage. The applicant, on seeing the resident, left the vehicle and ran from the garage. The resident chased and eventually apprehended the applicant who handed him a wallet and a pair of sunglasses belonging to one of the residents of the house. Police shortly arrived and arrested the applicant. They recovered a set of car keys that the applicant had thrown to the ground when he was being chased. When interviewed by police, the applicant said that he had seen the garage door open and had entered the kitchen from where he had removed the property. He said that he was only in the house for ten minutes.

4 The applicant had been sentenced on three earlier occasions in the Drug Court. On 5 March 2003 Judge Milson sentenced the applicant for an offence of break, enter and steal and an offence of driving unlicensed. He also took into account an offence of take and use a conveyance on a Form 1 when sentencing for the break and enter offence. The offences occurred on 4 December 2002. At that time the applicant was on parole. Judge Milson sentenced the applicant to imprisonment for 2 years and 9 months taking into account a period already served by the applicant in custody of 3 months. He then suspended that sentence for the duration of the Drug Court programme.

5 The applicant appeared before Judge Milson again on 28 May 2003. His Honour sentenced the applicant for an offence of aggravated break, enter and steal and an offence of take and drive a motor vehicle. The offences were committed on 24 October 2001 but the applicant was not charged until police were able to match DNA recovered from the scene with that of the applicant. Judge Milson sentenced the applicant to imprisonment for 2 years and 6 months but suspended the sentence for the period of the Drug Court programme.

6 On 19 January 2004 the applicant was sentenced by Judge Orchiston for an offence of aggravated break, enter and steal. The offence was committed on 4 February 2001 when the applicant entered a dwelling house while the resident was asleep and stole property valued at about $2,000 including a wedding ring and an engagement ring. The applicant came to police notice through a fingerprint left at the scene. Judge Orchiston sentenced the applicant to imprisonment for 2 years and 6 months but suspended the sentence for the duration of the Drug Court programme.

7 These sentences were all “initial” sentences within the provisions of the Drug Court Act 1998 (the Act). The Court was informed that it was the practice of the Drug Court at the time when Judge Milson and Judge Orchiston sentenced the applicant not to take into account an offender’s subjective circumstances when determining an initial sentence. We were also informed that this practice has since changed.

8 By reason of the commission of the offences on 15 March 2004 the applicant’s Drug Court programme was terminated on 6 April 2004. It was considered that he posed an unacceptable risk to the community if he were to remain in the programme. As a consequence of the termination of the programme Judge Dive had to reconsider the initial sentences imposed by Judge Milson and Judge Orchiston in accordance with s 12 of the Act. In so doing his Honour had to take into account the nature of the applicant’s participation in the programme, any sanctions that had been imposed upon the applicant during the programme and any time he had spent in custody for the offences. Those sentences were redetermined and as a result the applicant received sentences totalling 1 year and 8 months with a non-parole period of 1 year and 3 months to date from 15 March 2004. That non-parole period expired on 14 June 2005.

9 The applicant makes no complaint about those sentences. The grounds of appeal relate to the sentence imposed for the offence committed on 15 March 2004. As a result of the sentences imposed by Judge Dive, the applicant will serve an overall sentence of 5 years 3 months from 14 March 2004 with an overall non-parole period of 3 years 9 months.

10 The applicant was aged 24 years at the date of sentencing. He was born in Australia to Sudanese parents. He has a criminal record dating from 1998 when he was dealt with in the Children’s Court for an offence of break, enter and steal in respect of which he was placed on a 12 month bond. In August of that year he was again before the Children’s Court for two offences of break, enter and steal and placed on probation. He was placed on a good behaviour bond for a break, enter and steal in 1999 and in December of that year was ordered to perform community service for an aggravated offence of break, enter and steal. In 2001 he was given a suspended sentence for receiving. He received his first custodial sentence in 2002 in the Local Court for an offence of stalking and for breaching the good behaviour bond associated with the suspended sentence. In August 2002 he received a gaol sentence for dishonesty offences including a break enter and steal.

11 A pre-sentence report dated 4 June 2004 indicated that the applicant lived with his parents before his incarceration although he was attempting to secure alternative accommodation. He has described his parents as “very religious”. In evidence before Judge Dive he said that his upbringing was strict. He left school at the age of 17 after obtaining his HSC. After leaving school he held a number of unskilled positions. The applicant commenced using drugs, including amphetamine and heroin, from the age of 15. He has entered numerous rehabilitation centres but failed to complete their requirements. He has diabetes but tends to forget to take his insulin because of his drug usage. The probation and parole officer expressed the opinion that the applicant was motivated to address his drug problem in the long term and had shown long and steady progress despite intermittent drug use.

12 A pre-sentence report dated 16 August 2004 indicated that the applicant had sought counselling while in custody. The officer who wrote that report was encouraged that the applicant had apparently commenced to address some of the problem areas of his life including his relationship with his father.

13 There were a number of progress reports before Judge Dive in relation to the applicant’s performance on the Drug Court programme. They refer to the applicant having insight into his problems and a motivation to address his drug addiction despite his occasional use of drugs. It was noted that the greatest obstacle to the applicant’s rehabilitation was his “unpredictable and volatile” home environment because of his relationship with his father as a result of the applicant’s involvement with drugs. The applicant attended all his scheduled counselling sessions. He was involved in a drug rehabilitation course at Adele House Toongabbie for about 9 weeks during which he attended Narcotics Anonymous and received assistance with living skills. He left the centre after a “misunderstanding” with a staff member.

14 The applicant told a psychologist that his relapse into occasional drug use while on the programme was because of his contacts in the area where he lived. His major relapse, which resulted in the offending that caused him to leave the programme, was caused by emotional upset after seeing his former partner with another man. He gave a similar explanation in evidence before the sentencing judge. He had a child from this relationship in 2002 but his father will not acknowledge the child because it was born out of wedlock. The applicant gave evidence that his relationship with his father had been improving during his period on remand and he hoped to work with his father on release.

15 It is convenient to take the third ground of appeal first. This asserts that the Judge erred by having regard to the applicant’s criminal record as an aggravating factor of the offence. The relevant passage of the sentencing remarks is as follows:

When imposing any sentence, including a final sentence under the Drug Court Act, this court must consider the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act and consider the aggravating and mitigating factors set out in s 21A of the same Act.

Given the nature of the crimes involved, the factors raised in R v Ponfield are to be reflected in the sentences imposed.

In particular I do note that there are the aggravating factors of the offender having a record of prior convictions, that the latter offence was committed whilst the offender was on conditional liberty, and that there has been a series of criminal acts. As far as mitigation is concerned I think it is appropriate to note that the offences were not part of a planned or organised criminal activity, and a plea of guilty was entered.

In relation to the factors which enhance seriousness as set out in R v Ponfield I again note that the offender was on conditional liberty, the prior record of like offences, the multiple counts, given that there are matters taken into account on a form one, and that there was certainly the sentimental value of material stolen in some of the original break, enter and steal matters.

16 It is clear that this passage refers to all of the offences before Judge Dive. However, as was pointed out in R v Tadrosse [2005] NSWCCA 145 at [23], the aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act 1999 do not necessarily apply to all of the offences for which an offender is being sentenced, or at least not to the same degree, and a global approach may give rise to error or at least to the perception of error. The second paragraph of the quote above would seem to be a reference to the factors set out in s 21A. If that is so, then the fact that the applicant had a prior record of offences was not itself necessarily an aggravating factor in the sentencing of each of the offences before the Judge. The authorities have regarded s 21A(2)(d) as being limited to the situation where the prior record indicates a need for retribution, deterrence and protection of the public in sentencing for a particular offence: R v Johnson [2004] NSWCCA 76. However some question has arisen as to whether this approach is too limited: see R v Hathaway [2005] NSWCCA 368.

17 In R v Ponfield (1999) 48 NSWLR 327 one of the aggravating factors mentioned in respect of an offence of break, enter and steal was that the offender had a prior record particularly for like offences. There may be a conflict between that decision and the more recent cases concerned with s 21A(2)(d): see Hathaway at [33]. Whether there is any conflict on this point does not need to be resolved in order to deal with the present ground of appeal. At least for the purpose of sentencing for the aggravated break, enter and steal offence of 15 March 2004, it was appropriate for the Judge to find that the applicant’s record for offending in respect of offences of break, enter and steal had reached the point where personal deterrence, retribution and the protection of the community were necessary notwithstanding the applicant’s relatively young age. By the time he committed this offence the applicant had committed eight distinct and separate offences of break, enter and steal between 1998 and 2002, three of them aggravated by the fact that persons were in the premises. The offence in 2004 was committed despite the fact that the applicant had previously served a gaol sentence for such an offence and had been given the benefit of suspended sentences while he undertook the Drug Court programme. The first offence, for which Judge Milson sentenced the applicant, was committed when the applicant was on parole. In my opinion the third ground of appeal fails.

18 I should note that even had I been of the view that the Judge had erred in this regard it is highly unlikely that I would have found that the error was material such that some lesser sentence was warranted. This is because in assessing the objective seriousness of the offending Judge Dive took into account as a mitigating factor that “the offender was a drug addict with a ten year history of abuse, and who had recently consumed amphetamine”. It should be clear to all courts, and particularly to judges of the Drug Court, that the objective seriousness of an offence is not mitigated by the fact that the offender may have acted under the influence of a prohibited substance voluntarily taken by the offender before the commission of the offence. This is made clear by the extensive examination of the relevance of drug taking in sentencing in R v Henry (1999) 46 NSWLR 346. If it had any relevance to the objective seriousness in the present matter, it should have been regarded as an aggravating factor because the offender must have known that he was likely to commit such an offence if he resumed using amphetamine.

19 The first ground of appeal asserts that the Judge failed to have regard to the principles of totality in assessing the extent of the accumulation for the offence committed while the applicant was on the programme with the “final sentences” imposed for the offences originally dealt with by Judge Milson and Judge Orchiston. This ground can be considered, as it was in the written submissions, together with the second ground of appeal that asserts that the sentence is manifestly excessive.

20 It will be recalled that the Judge made the sentence for the 2004 offence cumulative upon the sentences for the earlier offences. Counsel for the applicant concedes that some cumulation was appropriate but submits that the overall sentence of 5 years 3 months with a non-parole period of 3 years 9 months was too severe having regard to the three months pre-sentence custody in respect of the first offence dealt with by Judge Milson, the 47 days of sanctions imposed during the Drug Court programme, the period of 9 weeks residence at Adele House and the applicant’s involvement in the Drug Court programme for more than a year.

21 In relation to the period served by the applicant in the programme, reliance was placed on part of the Second Reading Speech introducing the legislation setting up the Drug Court in which it was recognised that participation in the programme was not a “soft option” and that relapse by persons involved in the programme was expected as part of the recovery progress. Of course much will depend upon the nature of the relapse. Acts of occasional drug usage or relatively minor offences directly associated with the participant’s drugs addiction will no doubt be expected and are generally tolerated, as they were in the applicant’s case, without leading to a termination of the programme. However, a return to serious criminal activity cannot be treated with the same understanding and compassion, particularly where, as here, the applicant had been given earlier opportunities to address his drug problem and where he had a history of such offending including committing a similar offence while on parole. If such activity by a repeat offender is not treated severely by the courts, there is a real risk that the community will lack confidence in the Drug Court and its aims. As I have already indicated, the applicant’s further offending while on the programme raised a need for the sentence for the 2004 offence to reflect retribution, deterrence and the protection of the community.

22 When considering whether the total sentence imposed for all the offences that were before Judge Dive was too severe having regard to the totality of the applicant’s criminality to which those sentences related, regard must be had to any additional “punishment” imposed upon the applicant as a result of the commission of those offences. For example, the first sentence imposed by Judge Milson was reduced to take into account the period of three months pre-sentence custody served by the applicant. That period was presumably reflected in the “final sentence” for that offence imposed by Judge Dive in accordance with the requirements of s 12 of the Act. However, the period of pre-sentence custody cannot be disregarded when considering whether the overall sentence imposed in the Drug Court was manifestly excessive or when considering the relationship between the non-parole period and the balance of the term.

23 A simple example will make this clear. If an offender who has served six months pre-sentence custody is sentenced to imprisonment for 12 months, taking into account the period of pre-sentence custody as is required by s 24(a) of the Crimes (Sentencing Procedure) Act 1999, the sentence actually served by the offender for the offence is 18 months. If a further sentence of 6 months is made cumulative upon the sentence of 12 months, the apparent sentence for the two offences is 18 months but the actual time served is two years. It is very easy for the second sentencer to overlook that fact when deciding, in accordance with the principle of totality, what the sentence for the second offence should be. This is one of the reasons why the court should generally back date the sentence to take into account the period of pre-sentence custody rather than simply deducting that period from the sentence which would otherwise be imposed: see R v Newman and Simpson (2004) 145 A Crim R 361.

24 Similarly, even though the “final sentences” imposed by Judge Dive for the earlier offences took into account the 47 days of sanctions, the period served in residential rehabilitation, and the applicant’s participation in the Drug Court programme, those matters had to be considered again when determining, in accordance with the principle of totality, the overall sentence to be served by the applicant for all the offences for which he was before the court.

25 The complaint in relation to the head sentence imposed by Judge Dive is that, when the actual sentences imposed for all the offences are considered along with the other consequences of the applicant’s offending, the sentence is excessive having regard to the totality of the criminality before the court. For the purpose of arguing the validity of this submission the parties proceeded on the basis that the Court should take into account the three months pre-sentence custody, approximately 6 weeks of sanctions, the equivalent of 4½ weeks of quasi-custody in the residential programme (being 50 per cent of nine weeks) and the 13 month period spent under the rigours of the Drug Court programme. Counsel for the applicant submitted that after taking these matters into account the actual sentence imposed was about 6 years and 7 months rather than the sentence of 5 years and 3 months actually imposed by Judge Dive.

26 In my opinion the argument has merit in respect of the actual periods of custody or quasi-custody that were served by the applicant over and above the periods of imprisonment arising from the sentences actually imposed by Judge Dive. I do not accept, however, that the period that the applicant served during the programme should be treated as a form of custody and taken into account in a mathematical way in determining the actual sentence to be served by the applicant as a consequence of his offending. In my opinion participation in the programme cannot sensibly be regarded as the equivalent of imprisonment notwithstanding that it imposes limitations and obligations upon the applicant by requiring him to attend, for example, counselling sessions and court days. It was in fact an alternative to the applicant serving a full-time custodial sentence for the pre-programme offences.

27 There is an analogous situation that sometimes confronts a sentencing court where the offender has been on bail for a lengthy period of remand with strict conditions that have limited a person’s freedom and imposed obligations such as reporting to police, sometimes daily. Such a curtailment of an offender’s freedom is a matter that may be taken into account in determining the sentence for the offence. In R v Fowler (2003) 151 A Crim R 166 this Court considered how such a factor should be taken into account and stated:

[242] We accept that in an appropriate case the length and terms of an offender’s period on bail awaiting trial or sentence is a matter relevant to the determination of the proper sentence to be imposed. What weight is to be given to such a matter will vary from case to case, depending upon what other factors need to be considered and what sentence is required in the particular case to address the purpose of punishment. Where that purpose is the protection of the community and the conditions of bail are particularly onerous, such as where the offender has been required to reside at a rehabilitation establishment, very significant weight might be placed upon such a factor where it is appropriate having regard to the nature of the offence. However, in other cases, less weight may be given to such a consideration, particularly where the imposition of a sentence of imprisonment is required for the purposes of denouncing the crime and reflecting general deterrence.

28 It seems to me that the same approach should be taken to the fact that the applicant had been a participant in a Drug Court programme prior to being sentenced. It is simply a matter that goes into the synthesis that produces what the court considers to be an appropriate sentence without attempting to attribute to it any mathematical equivalence that would have a direct bearing on the length of the sentence to be imposed. Therefore I do not accept the applicant’s submission that the effect of the sentences imposed upon the applicant was to punish him by a quasi-custodial sentence of over 6½ years.

29 Notwithstanding that the 2004 offence was unplanned, the amount of property stolen was minor and the applicant was in the house for a short period of time, I am unpersuaded that a sentence of 4 years was manifestly excessive having regard to the maximum penalty and the standard non-parole period prescribed. This is notwithstanding that the sentence was discounted by 25 per cent for the plea of guilty. Nor do I believe that there was any error in the exercise of the Judge’s discretion to make the sentence wholly cumulative with the other sentences: that would be the expected order where the offences are unrelated and the offence was committed in breach of conditional liberty arising from the commission of the earlier offences.

30 Nor do I accept that the actual sentence to be served by the applicant of about 5 years 6 months (that is 5 years plus 3 months plus 47 days plus 4½ weeks) is excessive for all of the offences for which the applicant was being sentenced in the Drug Court. It should be recalled that one of the offences dealt with by Judge Milson was committed while the applicant was on parole. There was little in the subjective circumstances of the applicant warranting or justifying leniency.

31 It was also argued that the non-parole period was unduly lengthy in light of the finding of the Judge that there were special circumstances. It was pointed out on behalf of the applicant that the proportion of the overall non-parole period to the overall sentence to be served is 71 per cent. It was submitted that, when consideration is given to the fact that the applicant spent 3 months in pre-sentence custody, 9 weeks in quasi custody at the rehabilitation centre, the 47 days of sanction and taking into account the time served on the programme, there was little effective difference from the ratio prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999.

32 The relevant portion of the sentencing remarks is as follows (my emphasis):

In relation to special circumstances I have found special circumstances which warrant an adjustment to the statutory ratio between the non parole period and the period of parole. The principal ground is to restore the statutory relationship between the overall non parole period and the balance during which [the applicant] will be eligible for parole, given the imposition of a consecutive sentence. I also note that [the applicant] does have prospects of rehabilitation despite having failed to take advantage of all which was offered under his Drug Court programme.

He is a very young man of only 24 years of age, has a long history of drug abuse and has poor coping skills. He did succeed in residential rehabilitation and achieve periods of abstinence while on his Drug Court programme. He has an ability to work and be a useful member of the community, he is also a man who has been assessed by the psychologists as requiring supervision, support and psychological counselling to successfully reintegrate into the community.

For those reasons I have adjusted the statutory ratio between the non-parole and parole period.

33 The underlined portion of that passage seems to indicate that the Judge was concerned to find special circumstances in order to have the final ratio between the overall sentence and the non-parole period at about 75 per cent: that is the statutory ratio. The rest of the passage, however, is a recognition on the Judge’s part that the applicant needed a longer period on parole supervision than the statutory ratio would provide. Therefore, the non-parole period was further reduced to give the applicant a period of 18 months on parole rather than the 15 months that would have resulted from the application of the statutory ratio.

34 Of course the non-parole period must reflect the objective seriousness of the offence and the need for both general and specific deterrence. A finding of special circumstances, even for the purpose of providing a longer period on parole, is subject to these limitations. It was a matter for the discretion of the sentencing Judge to determine the appropriate ratio.

35 However, it is necessary to bear in mind that the ratio between the non-parole period and the head sentence can be affected by considerations other than simply the length of the sentence or sentences imposed. For example, if the sentence imposed does not reflect the actual period of custody served by reason of the commission of the offence, the apparent proportion between the non-parole period and the total sentence will not reflect the true situation. This problem was pointed out in R v Youkhana [2005] NSWCCA 231 where it was held to be an error for the sentencing judge to deduct from the appropriate sentence the period already served in custody and then to apply the statutory ratio of 75 per cent. In my judgment, with whom the Chief Justice and Hunt AJA agreed, I stated:

[10] It was quite wrong for his Honour to take into account the periods spent in custody in determining the head sentence. The period spent in custody is deducted from the whole of the sentence including the non-parole period. The difference between the approach adopted by the Judge and the correct approach becomes most obvious when there is no finding of special circumstances. In such a case, as was the position here, the offender obtains the benefit of only 75 per cent of the period served by way of a reduction in the non-parole period. In the proper approach, that is to fix the sentence and the non-parole period and then to make allowance for the period in custody the applicant gets the benefit of the whole of the period served. The mathematical problem would not have arisen had his Honour taken the course that decisions of this Court have consistently urged a sentencing judge to take: that is to back date the commencement of the sentence even if this results in the sentence being deemed to commence at a point when the offender was not in custody: see R v Newman and Simpson (2004) 145 A Crim R 361.

36 In the present case the actual period of custody that the applicant is to serve for all the offences dealt with in the Drug Court is about 5 years 6 months. The overall non-parole period specified by Judge Dive was 3 years 9 months. The actual minimum period that the applicant will have served before being eligible to be released to parole is 4 years 3 months (3 years 9 months plus 3 months plus 47 days plus 4½ weeks). This gives a proportion of 77 per cent between the overall non-parole period and the overall head sentence. This is not the result Judge Dive intended. A non-parole period bearing a proportion to the actual period of custody served by the applicant of 71 per cent is about 3 years and 3 months. The non-parole period for the 2004 offence therefore had to be reduced by six months being the equivalent of the addition period of custody or quasi custody being served by the applicant that was not reflected in the head sentence.

37 It should be noted that in such a case as the present, where there is a period of custody or quasi custody served by the offender that is not being reflected in the sentence imposed, a court might have to find special circumstances in order to impose a non-parole period that will be less than 75 per cent of the term of the sentence so as to bring about the intended proportion between the actual minimum period of custody to be served is 75 per cent of the actual period of custody that the offender will be required to serve by reason of the offence or offences for which sentence is being passed.

38 In the event that this Court might have to re-sentence the applicant, a large amount of material was placed before the Court by way of affidavit. As is usually the situation, the Crown objected to none of it and little of it could have a significant impact upon the Court’s discretion having regard to the findings of the Judge. It seems to me that this material is prepared as a matter of routine in almost every application for leave to appeal against sentence. Of course the Court will use none of the material unless it finds error. Very frequently this material is prepared at public expense because the applicant has legal aid.

39 Very often it appears that the applicant has been given an open slather to put in affidavit form anything that he or she might wish to place before the Court, whether or not it has any relevance or significance. Almost all of the affidavits I have seen by applicants contain expressions of remorse and contrition and resolutions not to offend again. The present is no exception. If the sentencing judge found that the applicant was remorseful and was unlikely to re-offend, this material takes the matter no further as this Court is unlikely to come to a different view than the Judge simply because there is no fresh material to support the findings. If the judge did not make those findings, it is highly unlikely the Court is going to come to a different conclusion based upon such material.

40 On many occasions the material either was placed, or should have been placed, before the sentencing judge: see Gonzalez v R [2006] NSWCCA 4 per Basten JA. The applicant should make the best case before the sentencing judge and not before this Court. I have very serious doubts that this Court should routinely accept evidence, even on the limited basis that it might be used in re-sentencing the applicant, if that material could reasonably have been placed before the sentencing judge.

41 In the present case there were 38 pages of fresh material much of it obtained through an application made to the Corrective Services Commission pursuant to provisions of the Freedom of Information Act. This again appears to me to be a frequent practice of the Legal Aid Commission whether or not it is likely to produce any material of significance. No doubt this application resulted in public cost and the expenditure of valuable time by public officers even before multiple copies of the material were made so that it could be filed and served.

42 This material was simply handed to the Court without being the subject of any particular submission by counsel for the applicant as to what the Court was to make of it or what impact it was to have on the exercise of the Court’s discretion. The Crown took no objection to its admissibility, nor commented on its content in submissions. This is almost always the way this material is presented. The Court was left to wade through the material to see if there was anything in it that might be admissible or remotely relevant. Much of the material was simply case notes and other documents from the applicant’s prison file. There were also copies of a large number of certificates received by the applicant as a result of courses undertaken by him while in custody. In the present case the Judge found that the applicant did have prospects for rehabilitation notwithstanding his failure to take advantage of all the Drug Court programme had to offer so that the material added little, if anything, to that finding. It was certainly not going to lead this Court to find that some lesser sentence was warranted.

43 This criticism may seem carping and uncharitable but, where that material could not significantly affect the exercise of this Court’s discretion on re-sentencing, it is simply a waste of money in preparing it, often from the limited finances of the Legal Aid Commission, and a waste of the Court’s time in reading material that is largely irrelevant. On a day where the Court has five or six sentencing matters before it, it is an unnecessary burden imposed upon the Court by legal practitioners who, with respect, do not appear to me to be having sufficient regard to the nature of the material or its purpose.

44 I do not intend by these remarks to single out the conduct of the particular counsel appearing and the instructing solicitor for the applicant in this matter as being in any way different from what has become common practice. I am merely using this case as an example of what I believe is a course of practice that has come to be adopted, possibly because the Crown has not sought to object to the material and the Court has not chosen to be more strict in limiting the material that it is willing to receive. It is a suitable vehicle to raise this criticism because of the amount of material that was placed before the Court that could have no real bearing on the determination of the appeal. But even this fact does not make it an exceptional case.

45 It should not be taken that there was nothing of relevance in the material. The affidavit of the applicant indicates the progress he has made in custody by way of trade, educational and other courses. He has been continuing with drug counselling and his urine samples have shown no traces of the use of drugs. But in light of the fact that the applicant had been involved in lifestyle courses, Narcotic Anonymous and counselling while on the programme reduces much of the significance of this material. As I have indicated, it simply supports the fact that the Judge was right to find that the applicant had good prospects of rehabilitation. If the applicant had not undertaken these courses or had been using drugs while in custody, then it would be most unlikely that he would be released to parole when the time arrives for that decision to be made. None of the material suggests to me that any lesser sentence should be imposed other than to correct the Judge’s failure to take into account the period of custody the applicant had served prior to being sentenced.

46 I propose that the application be allowed and the sentence imposed by Judge Dive in respect of the offence of 15 March 2004 be quashed and in lieu the applicant be sentenced to a non-parole period of 2 years to date from 15 June 2005 and to expire on 14 June 2007, the date upon which the applicant is eligible to be released to parole. There is to be a balance of term of 18 months to commence from 15 June 2007.

47 HALL J: I agree with Howie J.

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