Curtis v The Queen
[2008] NSWCCA 200
•29 August 2008
New South Wales
Court of Criminal Appeal
CITATION: Curtis v R [2008] NSWCCA 200 HEARING DATE(S): Monday 2nd June 2008
JUDGMENT DATE:
29 August 2008JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hidden J at 3 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - break, enter and steal (4) - pleas of guilty - various criticisms of remarks on sentence not made out - no question of principle CASES CITED: R v Henry [1999] 46 NSWLR 346 PARTIES: Matthew Curtis (applicant)
Regina (respondent)FILE NUMBER(S): CCA 2007/2912 COUNSEL: P White (applicant)
J Dwyer (Crown)SOLICITORS: Patricia White & Associates (applicant)
Solicitor for Public Prosecutions (respondent)LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/71/0088 LOWER COURT JUDICIAL OFFICER: S Norrish QC DCJ LOWER COURT DATE OF DECISION: 23/03/07
McCLELLAN CJ at CL2007/2912
HULME J
HIDDEN J
Friday 29th August 2008
1 McCLELLAN CJ at CL: I agree with Hidden J.
2 HULME J: I agree with Hidden J.
3 HIDDEN J: The applicant, Matthew Robert Curtis, pleaded guilty in the District Court to four counts of break, enter and steal. On the first count, he was sentenced to imprisonment for a fixed term of 18 months. On each of the second and third counts, he was sentenced to concurrent fixed terms of 2 years and 3 months, which were also concurrent with the sentence on the first count. On the fourth count, he was sentenced to imprisonment for 3 years and 9 months, comprising a non-parole period of 1 year and 9 months and a balance of term of 2 years, which was accumulated upon the other sentences by one year. The aggregate sentence, then, was imprisonment for 4 years and 9 months with an effective non-parole period of 2 years and 9 months. He seeks leave to appeal against those sentences.
4 The offences were committed at private homes in Young over a period of about ten days in May 2006. Each of the homes was readily accessible, and the applicant stole a variety of items, comprising money, jewellery, a video recorder and a Playstation. However, from the home the subject of the fourth count he also stole two rifles and a shotgun, which he later disposed of. It was the theft and disposal of those firearms which led the sentencing judge to pass the heaviest sentence on that count. He committed the offences to fund his addiction to a pain-killing drug, oxycontin, which he was buying illegally.
5 The applicant was thirty-one years old at the time of the offences, and is now thirty-three. He has a bad criminal record, including a number of previous convictions for break, enter and steal. He was extended leniency for those offences in earlier years, but subsequently served terms of imprisonment for several of them. Some of the offences on his record were committed while he was on parole.
6 He had a long history of drug abuse, principally of heroin and amphetamines, dating from his early teenage years. It appears that this abuse began during a troubled period of his life, and led to his offending behaviour. There were periods of abstinence when he tried, unsuccessfully, to deal with his addiction. There was such a period prior to the offences in question, but some months before they were committed he was introduced to oxycontin and quickly became dependent on it.
7 There is no need to refer to other aspects of his subjective case. The sentencing judge found special circumstances in respect of the sentence for the fourth count, partly because of the accumulation of that sentence upon the other sentences but also in recognition of the need to afford him an extended period of supervision to adjust to life in the community and to address his drug addiction. His Honour discounted the sentences by twenty-five per cent because of his early pleas of guilty.
- The application
8 The application was argued by the applicant’s solicitor, Ms White, who submitted that His Honour had erred in five respects in his approach to sentence.
Co-operation with authorities
9 Firstly, it was said that the applicant should have been allowed a discrete discount of sentence because of his co-operation with the authorities. It was not until about two months after the offences that he was charged with them. Police had executed a search warrant at the premises where he was living, and some of the stolen property was found. He was arrested and, during a recorded interview, he admitted that the property was the subject of the four break-ins and disclosed his involvement in them. As to one of them, he admitted an offence of which the police were not then aware.
His Honour referred to this evidence in his remarks. However, he later observed that there had been “some degree of pre-trial disclosure”, but “not complete disclosure”. This was a reference to the fact that the applicant declined to tell police who it was to whom he had disposed of the firearms the subject of the fourth count. It was in that context that His Honour said that he could not “give him additional punishment for his failure to co-operate with the authorities”, but expressed his concern about that lack of co-operation.
10 These passages convey, said Ms White, that His Honour failed to give the applicant’s admissions, and his disclosure of an offence of which he was not suspected, the weight in mitigation of sentence which they deserved. Indeed, she argued that, but for his admissions, the applicant might have been charged with no more than several counts of receiving stolen property and that those offences might have been dealt with summarily.
11 That last argument is no more than speculative. Putting aside the offence admitted by the applicant of which the police were not aware, the material before this Court does not enable us to evaluate the evidence against him, absent his admissions, in respect of the other three offences. Nor could it be assumed that charges of receiving would have been dealt with summarily, given his criminal history.
12 It is clear that his Honour was mindful of the applicant’s co-operation and took it into account appropriately. Its mitigating effect was diminished by his refusal to disclose the identity of the person who received the firearms, and his Honour was rightly concerned about his failure to provide police with information which might disclose their whereabouts and, perhaps, lead to their recovery. That approach was well open to his Honour.
Firearms
13 Secondly, Ms White submitted that his Honour gave undue emphasis to the theft of the firearms and their disposal. In addition to the passages in the remarks to which I have already referred, she drew our attention to another passage in which his Honour said that the applicant had “committed a serious error of judgment …in taking the firearms of [the relevant victim], thus attracting the much greater sentence for that offence than the other matters”.
14 In large part, this complaint has been dealt with by what I have already said. The fourth count was significantly more serious than the others because it involved the theft of firearms, which were then passed on to some unidentified person. Ms White argued that his Honour treated the applicant’s refusal to disclose the identity of that person “as an aggravating factor in the calculation of the sentence to be passed”, and that that approach was unwarranted and amounted to an infringement of his right to silence.
15 However, it is clear from his remarks that his Honour did not treat that matter in that way. As I have said, he saw it as bearing upon the extent of the applicant’s co-operation with the police. He also saw it as relevant to the measure of remorse which might be evidenced by that co-operation and by the pleas of guilty. As to remorse, his Honour also had regard to evidence which the applicant gave in the sentence proceedings to the effect that he had given the firearms to somebody to dispose of because they were not in working order. His Honour rejected that evidence because it was inconsistent with a statement by the owner of the weapons about their condition. No error has been shown in his Honour’s assessment of the significance of the firearms and of what the applicant had to say about them.
Protective custody
16 His Honour accepted evidence that the applicant had been assaulted by several other inmates while in custody, and expressed concern about the adequacy of the medical treatment which he had received. It seems that the assault was perpetrated by prisoners who recognised him as a person who had previously been on protection and who, presumably, suspected him of having been an informer. As a result of the assault, he had again been placed on protection, although he gave very limited evidence about the conditions of custody which that involved.
17 Clearly, protective custody for the remainder of his sentence was a possibility, although his Honour observed that that might be a difficult decision for the applicant, given the apparent reason for the assault and the disadvantages which generally attend that status. His Honour also observed that he faced some danger in custody and could expect to serve his term “in circumstances of some fear”. He took this development into account, noting that it was not “a significant mitigating matter but it is a matter relevant to be considered”.
18 Ms White’s complaint about this matter, as articulated in written submissions, was that his Honour fell into error “in not further discounting the sentence due to the fact that the applicant would serve his sentence in protective custody”. In fact, as I have said, his Honour was not certain that the applicant would do so but was conscious of the additional stress which he must experience as a result of the assault. In any event, if by that submission Ms White meant that his Honour should have quantified a discount of sentence because of this evidence, that course would have been inappropriate. His Honour took this matter into account to the extent which he expressed and, again, no error has been shown in his approach.
Drug addiction
19 As I have said, the applicant’s drug addiction appears to have had its origin in a difficult period of his life in his early teenage years. A psychiatrist, who provided a report, found “suggestions of relatively long standing depression” in the applicant, which had perhaps increased in severity in the period during which the offences were committed. His Honour appears to have accepted a connection between that depression and the events of his teenage life. However, he found no causal relationship between that condition and the offences.
20 His Honour also considered that the applicant’s dependence on oxycontin at the time of the offences was “a matter of choice”. He made that finding after referring to the familiar passage in R v Henry [1999] NSWCCA 111, 46 NSWLR 346, in which Wood J (as then was) considered the relevance of drug addiction to sentence. Among other things, the former Chief Judge recognised that such addiction might be a relevant subjective circumstance if its origin or extent suggested that “the addiction was not a matter of personal choice….” (at [273] (c)(ii)).
21 Ms White argued that his Honour’s finding was not available in the light of the link, which he appeared to accept, between the applicant’s troubled early life, his drug addiction and his depression. As she put it in written submissions, despite that evidence his Honour did not seem “to have regarded that relationship as a causal connection sufficient to be a mitigating factor on sentence”.
22 This misconceives the effect of this aspect of the remarks on sentence, read as a whole. His Honour clearly had regard to the history of the applicant’s use of drugs established by the evidence. What he was saying was that, although difficulties in his early life might have led to his drug abuse and to an enduring measure of depression, his resort in his mature years to the use of oxycontin after a period of abstinence ought fairly to be described as his personal choice. No doubt, his dependence on the drug was his motive for the commission of these crimes, but it did not sound in mitigation on the basis explained by Wood J in Henry.
23 That said, it is clear that his Honour had regard to the applicant’s long history of drug abuse, and its origin, as part of his subjective case. Yet again, no error has been shown in the manner in which this aspect of the case was dealt with.
Prospects of rehabilitation
24 Finally, Ms White challenged his Honour’s conclusion that it could not be said that the applicant had good prospects of rehabilitation. She outlined that submission in writing, but did not develop it orally. Given the applicant’s age and criminal history, that finding was clearly open. Despite it, as I have said, his Honour found special circumstances partly in the hope that his rehabilitation might yet be achieved.
Conclusion
25 Accordingly, none of the challenges to his Honour’s reasons for sentence has been made out. I might add that, in any event, I am satisfied that no lesser sentences were warranted. Moreover, the applicant had the benefit of concurrent sentences on the first three counts and, given the totality of his criminality, the aggregate sentence could only be described as moderate.
26 I would grant leave to appeal but dismiss the appeal.
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