Carratt v The Queen
[2016] NSWDC 7
•8 February 2016
|
New South Wales |
Case Name: | Carratt v R |
Medium Neutral Citation: | [2016] NSWDC 7 |
Decision Date: | 8 February 2016 |
Jurisdiction: | Criminal |
Before: | Cogswell SC DCJ |
Decision: | Appeals allowed. In respect of the larceny (sequence 1) the sentence is varied by reducing the non-parole period from six months and 23 days to six months, to expire on 22 March 2016. In respect of the contravene apprehended domestic violence order offence, the non-parole period is reduced from eight months to six months to expire on 22 March 2016. In respect of the second shoplifting offence the non-parole period is reduced from eight months to six months to expire on 22 March 2016. |
Catchwords: | CRIMINAL LAW – appeals against sentence – non-parole period exceeds 75% - special circumstances for reducing ratio between head sentence and non-parole period – youth of offender – first time in custody – need to re-engage with treating psychologist – reduction not opposed by Crown |
Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 20, 44 |
Category: | Principal judgment |
Parties: | Mitchell Carratt (Appellant) |
Representation: | Solicitors: |
File Number(s): | 2011/142223;2014/052902;2014/174786 |
Decision under appeal: | |
Court or Tribunal: | Local Court |
Jurisdiction: | Criminal |
Date of Decision: | 30 November 2015 |
Before: | Connell LCM |
File Number(s): | 2011/142223; |
JUDGMENT
Mitchell Carratt has appealed from sentences imposed on him by his Honour Magistrate Connell sitting in the Local Court. The magistrate sent Mitchell Carratt to gaol. The magistrate really had no choice because Mitchell Carratt had run out of opportunities which the court system had provided to him. He committed offences of shoplifting, destroying and damaging property, larceny and contravening an apprehended domestic violence order as well as a further offence of shoplifting.
The Local Court had given him good behaviour bonds and suspended sentences, but he kept breaching them. He has been in custody since 23 September last year and when he came before Magistrate Connell he received prison sentences for all of these offences. The magistrate sentenced him to six months for the shoplifting and six months for the damage to the property and nine months for two larceny offences. They were concurrent with a non-parole period of six months.
BERESFORD: Sorry, your Honour, one them was a section 9.
For one of the larcenies he received a sentence of nine months with a non-parole period of twelve months. For the other he received a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 30 months. For contravening the apprehended domestic violence order the magistrate sentenced Mitchell Carratt to twelve months imprisonment and set a non-parole period of eight months. For the final shoplifting committed on 23 September 2015 when he was arrested and went into custody he received a prison sentence of twelve months with a non-parole period of eight months.
The overall effective sentence is one of one year and eight months (that is, 20 months) imprisonment. His sentences apparently date from 31 January 2015. The non-parole period of fifteen months and 22 days does not accord with the envisaged non-parole period of 75 percent contained in s 44 of the Crimes (Sentencing Procedure) Act. It does not have to accord with that, but it is unusual for a non-parole period to exceed 75 percent. Indeed, Parliament envisages that a non-parole period can be reduced below 75 percent if there are special circumstances for doing so.
In this case Ms K Beresford, who appears for Mr Carratt in the sentence appeal, has argued that I should reduce the non-parole period to 22 March 2016 from the present release date of 22 May 2016. She says the special circumstances for doing that are these. Her client is 26. It is his first time in prison. In fact he told me when I asked him that it has had a significant impact upon him. He has been assaulted a number of times and has formed a very clear view that he does not want to return to prison. He needs time to return to his treating psychologist and to re-engage in that treatment.
Mitchell Carratt lives at home with his father and his grandmother. His father, who is a labourer, may be able to secure work for him and he is wanting to undertake a rigger's course at TAFE which starts in April this year. He has had drug problems and behavioural problems in the past. These obviously have resulted in him ending up in prison. These problems are reflected in his criminal record, which extends over a relatively short period of time. He committed only one offence when he was under 18.
I think Ms Beresford has made out a case for reducing the non-parole period. Ms R Buttini, who appears for the respondent to the appeal, the Director of Public Prosecutions, acknowledges the case made.
I propose to allow the appeal and to reduce the non-parole period for those reasons put forward by Ms Beresford.
The formal order which I make is this. Under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW) I determine these appeals against sentence as follows. In respect of the larceny (sequence 1), I vary the sentence by reducing the non-parole period from six months and 23 days to six months to expire on 22 March 2016. In respect of the contravene apprehended domestic violence order, I reduce the non-parole period from eight months to six months to expire on 22 March 2016. In respect of the second shoplifting offence, I reduce the non-parole period from eight months to six months to expire on 22 March 2016.
In respect of each of those varied sentences, I make an order directing that Mr Carratt be released on parole on 22 March 2016. The conditions of his parole are these -
(1)That he be of good behaviour.
(2)That he accept supervision from the NSW Community Corrections Service and for that purpose reports to the Community Corrections office at Sutherland on or before 29 March 2016.
(3)That he live with his grandmother and father at [address].
(4)That he attend his general practitioner and comply with any medication prescribed by that general practitioner.
(5)That he re-engage with his treating psychologist.
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