Fernando, Cecil George v The Queen

[2011] NSWDC 167

District Court

New South Wales

Medium Neutral Citation:	FERNANDO, Cecil George v R [2011] NSWDC 167
Decision date:	22 September 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Appeal adjourned for a month for information to be sought about residential rehabilitation options.
Catchwords:	CRIMINAL LAW - appeal - assault occasioning actual bodily harm - disguised face with intent to commit larceny - commit s 114 offence with previous conviction for same offence - resist police - plea of guilty - extensive criminal history - protection of the community - history of alcohol abuse - never undertaken rehabilitation course - undertaking SMART program in custody - relevance of specific deterrence - special circumstances
Legislation Cited:	Crimes Act 1900 s 38, s 59, s 114, s 115 Crimes (Sentencing Procedure) Act 1999 s 21A
Category:	Interlocutory applications
Parties:	Regina Cecil George Fernando
Representation:	Mr MB Davies for the Director of Public Prosecutions Mr PM Schmidt for Mr Fernando
File Number(s):	2011/121983 2011/128100
Decision under appeal	Jurisdiction: 9109 Before: Magistrate Holmes

Judgment

1. In this case I have to decide whether to reduce a non-parole period even further than the generous reduction which the magistrate allowed for an offender who has a long criminal history.

2. The offender is Cecil George Fernando. He came before the Moree Local Court on 26 July this year. He had been charged with four offences. One was assault occasioning actual bodily harm against his brother, which he committed on 8 January this year. That is a crime against s 59 of the Crimes Act 1900. The other three offences were all committed on 18 April this year. The first was having a disguised face with intent to commit larceny. That is a crime against s 114 of the Crimes Act . The second is an offence constituted by committing that offence with a previous conviction for the same offence. That is made into a crime under s 115 of the Crimes Act . Lastly he was charged with resisting the police which is an offence against s 38 of the Crimes Act .

3. He pleaded guilty to all of these offences.

4. His Honour Magistrate Holmes, for the assault occasioning actual bodily harm, sentenced Mr Fernando to twelve months imprisonment. It was to commence on the day he was arrested, 13 April 2011 and therefore expires on 12 April next year. For the three other crimes, all committed on 13 April, his Honour imposed one sentence of eighteen months imprisonment. He specified a nonparole period of twelve months commencing on the same day. Therefore, his Honour gave Mr Fernando the benefit of allowing the sentences to run at the same time despite the offences being some three months apart. Not only this, for an eighteen month prison sentence the nonparole period would normally be expected to be about 75 per cent, namely thirteen and a half months. His Honour exercised his discretion again in favour of Mr Fernando and reduced it to twelve months. He obviously regarded there being some special circumstances for further reducing it.

5. As I said, Mr Fernando has a long criminal history which Mr Davies, who appears for the respondent Director of Public Prosecutions, draws my attention to. This is very relevant to one of the aims of punishing an offender, namely protection of the community.

6. Mr Fernando is now thirty and started offending when he was a child and came before the Children's Court regularly for crimes mostly involving stealing and cars. When he was an adult he came before Local Courts in a number of areas in this State. Again he was convicted of stealing cars but also he has a conviction for assault occasioning actual bodily harm - like the current offence that I am dealing with - and stalking or intimidating someone. Not only that, in 2007 he was convicted in the Taree District Court of robbery in company and assault with intent to rob. He received a prison sentence of six years and three months with a nonparole period of three years and three months. He was released on parole after those three years and three months and was therefore still on parole when he committed all of the offences that I am dealing with.

7. It is understandable why Mr Davies draws my attention to Mr Fernando's criminal history and the need to protect the community. As Mr Davies pointed out, it seems that the only times that Mr Fernando is not committing offences is when he is in custody.

8. Mr Schmidt, who appears for Mr Fernando, called his client to give evidence. He grew up on the Moree mission and his background was affected by the alcohol abuse within the family. He had what he described himself as a bad upbringing. He has himself five children, two of them to his current partner. He left school in Year 8 and has had jobs only occasionally. The longest time that he has stayed in a job has been for about three months. He has undertaken rehabilitation courses in custody, including the SMART program and he is currently doing a program about managing his emotions and then he is going to undertake the SMART program again. He has never done a rehabilitation program in the community.

9. He said that he wants to change his life because of his children and because of the role model which he provides. His oldest child is eleven and amongst his children he has two boys aged six and eight. The six year old lives with him. When he was crossexamined by Mr Davies, he said that he started drinking alcohol at the age of fifteen and clearly acknowledged the link between his drinking and his criminal behaviour. His youngest child is Azaria, whom his partner Lisa had two months ago.

10. I should say something about the crimes which he committed. The assault occasioning actual bodily harm, which was committed back in January, occurred when he had an argument with his brother. His brother, Bradley Fernando, who is seven years older than Mr Fernando, came to stay with Mr Fernando. His brother was concerned about whether there was any violence going on between Mr Fernando and his partner in their bedroom and he intervened. At some stage afterwards Mr Fernando swung punches towards his brother's face with both of his fists. He hit his brother in the left eye and the nose. He hit him again on the forehead. That cut the top of his forehead.

11. The other crimes were committed on 13 April 2011. When Mr Fernando and some others turned up at 4.30 in the morning at the Moree Spa Motor Inn and tried to open the doors of some cars, they were detected by the owners who called the police. He was seen wearing dark clothing with his jacket pulled up over the lower half of his face in an attempt to disguise his identity. Police could not identify him. That constitutes the offence of disguising his face. They were asked their names but Mr Fernando ran away and had to be pursued by the police who tackled him to the ground and handcuffed him. Hence, he was charged with resisting the police and because he had a previous conviction for the face disguise charge, was found to have committed the offence against s 115 of the Crimes Act .

12. Mr Schmidt argues that I should reduce the nonparole period from twelve months to nine months. That would provide an opportunity for his client to undertake some rehabilitation in the community at a rehabilitation centre which will be organised over the next few months.

13. Against this course, namely reducing the nonparole period to nine months, are these factors. One is that Mr Fernando has a bad criminal record. He has tried to rehabilitate himself in prison but has broken the law again. That does not bode well for him being able to succeed. In addition, secondly, the bad criminal record indicates that I have to place more emphasis when sentencing him on deterring him. Indeed, as Mr Davies pointed out, he seems not to commit crimes only when he is in custody. Thirdly, I need to bear in mind the protection of the community. The people who are the victims of Mr Fernando's crimes are innocent members of the community and releasing him exposes them to some risk. Fourthly, he was on parole at the time he committed these offences. Once again that does not bode well for his rehabilitation. It is also a significantly aggravating feature for me to take into account under s 21A of the Crimes (Sentencing Procedure) Act 1999. In addition--

VIDEO LINK TO MID NORTH COAST CORRECTIONAL CENTRE DISCONNECTED

HIS HONOUR: Can you see and hear us Mr Fernando? Can you see and hear us now? No. We've got vision, I'm not sure if he has vision or sound. Can you see and hear us Mr Fernando?

APPELLANT: Okay.

VIDEO LINK TO MID NORTH COAST CORRECTIONAL CENTRE RECONNECTED

HIS HONOUR: I'll just go back a step and I will continue.

14. In addition, these offences were committed when Mr Fernando was on parole. This does not bode well for his rehabilitation and is also a significantly aggravating feature which I need to take into account under s 21A of the Crimes (Sentencing Procedure) Act 1999. Not only that, but the assault occasioning actual bodily harm was committed in the presence of a child.

15. On the other hand I need to take into account the obvious background which Mr Fernando has had where he was exposed to alcohol abuse at a very early age. His eduction ceased at a very early age and his skills and employability are limited. The alcohol has obviously marred his life so far - he is now thirty - and accounts for his criminal behaviour. He has said to me in the witness box that he is wanting to provide a positive role model for his children.

16. Most significantly he has not yet undertaken a residential rehabilitation program in the community. He told me this morning that his present program, which he is undertaking in prison, goes for about another four weeks and then he is going to undertake the SMART program again which will take about eight weeks. That, by my calculations, will take him into December. Reducing the nonparole period to nine months will bring the nonparole period into January. I have decided that I am prepared to reduce the nonparole period provided there is a place for him at a residential rehabilitation centre, which is yet to be confirmed. I would be prepared, if he could go into a centre, to reduce the nonparole period to nine months so that it would expire on 12 January 2012.

17. The special circumstances which I take into account are the fact that he has not done a residential rehabilitation program in the community and his own background and lack of opportunity to deal with a problem that he was exposed to as a child and has not yet been able to overcome. I put on record by way of acknowledgement, that there is some risk to the community in me making that decision. Indeed there is some risk perhaps to Mr Fernando's own family. He has prior convictions for offending against his own family - sorry does he have domestic violence? I know he hit his brother - no? Right.

18. He has this conviction for offending against his own brother and he has convictions for stalking and intimidating, robbery and assault. However, I have decided to give him this opportunity to see whether he can turn his life around, now that he is thirty. If he does not, then he is unlikely to get any further leniency from me or other courts.

19. I will not finalise the case today but, at Mr Schmidt's suggestion, I will stand it over for about a month to receive information about the rehabilitation centres. I will need to fix the conditions of parole. The parole period will obviously be nine months and I would expect a condition would be that he attend the rehabilitation centre immediately upon his release and accept all their reasonable recommendations and directions. It would be, I think, a condition of the parole, and I will hear both representatives on this, that he complete the rehabilitation program. A departure from the course or the program would, I think, constitute a breach of the parole.

20. They are my reasons, I will now direct that a transcript be taken of those reasons so that we all have them for the next time.

**********

Decision last updated: 27 October 2011