Flynn v R

[2010] NSWCCA 171

New South Wales
Court of Criminal Appeal

CITATION:	Flynn v R [2010] NSWCCA 171 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 July 2010
JUDGMENT DATE:	6 August 2010
JUDGMENT OF:	Allsop P at 1; Price J at 6; McCallum J at 58
DECISION:	(i) Leave to extend time to appeal be granted. (ii) Leave to appeal be granted. (iii) Quash the dates of the commencement and expiration of the sentence imposed by Geraghty DCJ on charge 6 being a charge of break, enter and steal on 12 July 2006 contrary to s 112(1) Crimes Act. (iv) Sentence the applicant to imprisonment with a non-parole period of 2 years 3 months to commence 12 September 2009 and to expire on 11 December 2011 with a balance of term of 1 year 3 months expiring on 11 March 2013 for charge 6. (v) Quash the sentence imposed by Geraghty DCJ on charge 8 being a charge of using an offensive weapon, namely a motor vehicle, to prevent lawful detention on 13 July 2006 contrary to s 33B Crimes Act. (vi) Sentence the applicant to imprisonment with a non-parole of 18 months to commence 12 August 2010 and to expire 11 February 2012 with a balance of term of 2 years to expire 11 February 2014 for charge 8. The total effective sentence is imprisonment with a non-parole period of 5 years 5 months commencing 12 September 2006 and expiring on 11 February 2012, with a balance of term of 2 years expiring on 11 February 2014. The earliest date the applicant is eligible to be released on parole is 11 February 2012.
CATCHWORDS:	CRIMINAL LAW - sentencing - whether sentences manifestly excessive - whether adequate regard to health problems - whether finding of special circumstances reflected in total effective sentence - whether compensation should have been ordered - offences committed whilst on parole and as an escapee
LEGISLATION CITED:	Criminal Appeal Act 1912 s 6(3), s 9(2) Crimes Act 1900 s 33B, s 112(1), s 154A(1)(b), s 154A(1)(a), s 154C(1)(b), s 310D(a), s 33B(1)(a) Crimes (Sentencing Procedure) Act 1999 s 32, s 44,s 44(2) Victims Support and Rehabilitation Act 1996 s 3, s 77B, s 77D, s 77F
CATEGORY:	Principal judgment
CASES CITED:	Connor v The Queen (2005) 158 A Crim R 389 R v King [2003] NSWCCA 352 R v Pham [2005] NSWCCA 94 R v Simpson (2001) 53 NSWLR 704
PARTIES:	Ashley Flynn Regina
FILE NUMBER(S):	CCA 2007/3125
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Geraghty DCJ
LOWER COURT DATE OF DECISION:	20 July 2007

2007 / 3125

ALLSOP P
PRICE J
McCALLUM J

6 August 2010

Ashley FLYNN v R

Judgment

1 ALLSOP P: I have read the reasons of Price J. Subject to the following comments, I agree with his Honour’s reasons. I agree with the orders proposed.

2 The facts and subjective circumstances reveal two things starkly: the significant criminality of Mr Flynn’s conduct for which he was sentenced and the very difficult personal circumstances experienced by Mr Flynn during his childhood, youth and early adulthood.

3 Mr Flynn is now 26. Notwithstanding his lack of formal education past year 7 and the undoubted physical effects of years of drug and alcohol abuse, Mr Flynn exhibited in court, if I may say so without intending any condescension, an impressive intelligence and an apparently genuine desire to rehabilitate his future from the rubble of the past and the monotony of the gaol yard. He has a partner and a daughter. He has the clearest need for assistance in rehabilitation. He appears to have matured to a point in his life where he recognises the task before him. He may not succeed. His submissions to this court frankly recognised his past criminality and the uncertainty of his future; they also recognised his need for help in rehabilitation. He seeks that help.

4 The resentencing task of this court should recognise Mr Flynn’s need for rehabilitation, notwithstanding the serious criminality of his offences. I was originally minded to reduce the non-parole period of charges 6 and 8 somewhat more than six months. However, I am persuaded by the reasons of Price J that the objective criminality of the offences demands the sentences formulated by Price J. Nevertheless, the six month reduction in the non-parole period will go some way to providing Mr Flynn with a longer period of supervised parole and access to rehabilitation.

5 I have also read the reasons of McCallum J on the compensation order. Given the facts of the matter displayed in the remarks on sentence I do not consider that the sentencing judge failed to address all mandatory considerations. That said, it might have been preferable for the judge to direct himself expressly to s 77D. Nevertheless, the nature of the criminal behaviour described in the remarks reflects an attendance by the judge to the relevant considerations.

6 PRICE J: The applicant Ashley Stephen Flynn seeks leave to appeal against the sentence imposed by Geraghty DCJ in the District Court at Sydney on 20 July 2007. He had pleaded guilty to eight offences with a further five being taken into account by the Form 1 procedure pursuant to s 32 Crimes (Sentencing Procedure) Act 1999.

7 The first offence was a charge of break, enter and steal on 8 March 2006 contrary to s 112(1) Crimes Act 1900. An offence contrary to s 112(1) is punishable by imprisonment for 14 years. Four offences on a Form 1, namely dishonestly obtaining unleaded fuel to the value of $30; malicious damage of a window of a panel van; resist police officer in the exercise of his duty; and possess implements capable of entering a conveyance were taken into account by the Judge on the sentence imposed on the first charge.

8 The applicant was sentenced on the first charge to imprisonment with a non-parole period of 3 years to commence 12 September 2007 and to expire 11 September 2010. An additional term of 18 months to expire 11 March 2012 was set.

9 The second offence was a charge of take and drive a motor vehicle on 14 March 2006 contrary to s 154A(1)(b) Crimes Act. An offence contrary to s 154A(1)(b) is punishable by imprisonment for 5 years. A fixed term of imprisonment of 9 months to commence 12 September 2008 and to expire 11 June 2009 was imposed by the Judge. This sentence was, thus, wholly subsumed by the non-parole period for the first charge.

10 The third offence was a charge of taking a motor vehicle on 15 March 2006 with the occupant on board (commonly known as “car-jacking”) contrary to s 154C(1)(b) Crimes Act. An offence contrary to s 154C(1)(b) is punishable by imprisonment for 10 years. A standard non-parole period of 3 years imprisonment applies. On this charge, the applicant was sentenced to imprisonment with a non-parole period of 18 months to commence on 12 June 2009 and to expire 11 December 2010 with an additional term of 12 months to expire 11 December 2011. This sentence extended the effective non-parole period of the sentence imposed on the first charge by 3 months.

11 The fourth offence was an escape from lawful custody on 25 March 2006 contrary to s 310D(a) Crimes Act. An offence contrary to s 310D(a) is punishable by imprisonment for 10 years. For this charge, the applicant was sentenced to a fixed term of imprisonment of 12 months to commence 12 September 2006 and to expire 11 September 2007.

12 The fifth offence was a charge of using an offensive weapon, namely a motor vehicle, to prevent lawful detention on 2 July 2006 contrary to s 33B(1)(a) Crimes Act. Such an offence is punishable by imprisonment for 12 years. An offence of taking and driving a conveyance on a Form 1 was taken into account by the Judge when he sentenced the applicant for the fifth offence. A sentence of imprisonment was imposed with a non-parole period of 2 years to commence on 12 December 2009 and to expire 11 December 2011 with an additional term of 1 year to expire 11 December 2012. As a consequence of this sentence, an effective non-parole period of 1 year was added to the non-parole period for the third charge.

13 The sixth offence was a charge of break, enter and steal on 12 July 2006 contrary to s 112(1) Crimes Act. The applicant, for this charge, was sentenced to imprisonment with a non-parole period of 2 years 3 months to commence 12 March 2010 and to expire 11 June 2012 with an additional term of 1 year 3 months to expire 11 September 2013. As a consequence of this sentence, an effective non-parole period of 6 months was added to the non-parole period for the fifth offence.

14 The seventh offence was a charge of taking and driving a conveyance contrary to s 154A(1)(a) Crimes Act on 12 July 2006. For this offence, the applicant was sentenced to a fixed term of imprisonment of 9 months to commence 12 June 2010 and to expire 11 March 2011. This sentence was wholly subsumed in the non-parole periods previously set.

15 The eighth offence was another charge of using an offensive weapon, namely a motor vehicle, to prevent lawful detention on 13 July 2006 contrary to s 33B Crimes Act. The applicant was sentenced for this offence to imprisonment with a non-parole period of 2 years to commence 12 August 2010 and to expire 11 August 2012 with an additional term of 18 months to expire 11 February 2014. As a consequence of this sentence, an effective non-parole period of 2 months was added to the non-parole period set in the sixth charge.

16 As a result of accumulation and concurrence, the total effective sentence was imprisonment with a non-parole period of 5 years 11 months commencing 12 September 2006 and expiring 11 August 2012, with a balance of term of 1 year 6 months expiring 11 February 2014. The earliest date the applicant is eligible to be released on parole is 11 August 2012. The Judge ordered that the applicant pay compensation in the sum of $27,338.89.

17 The Judge had found that the applicant was entitled to a utilitarian discount of 25 per cent for the pleas of guilty all of which had been entered in the Local Court.

Facts

18 The facts of the offences were not in dispute and a statement of agreed facts was tendered. The facts may conveniently be summarised as follows:

Charge 1 : Around 9.30am on 8 March 2006, the applicant kicked down the front door of a dwelling house in Beecroft causing the lock to break. He then entered and stole from the house property with a value of $4,075 and a British passport.

Charge 2 : At about 4.30pm on 14 March 2006, the applicant with an
unknown male entered the garage of a residence in Cherrybrook and started the engine of a Holden Commodore sedan. When the owner went to the garage to investigate, the applicant reversed the vehicle from the garage and drove it away.

Charge 3 : At about 10am on 15 March 2006, Suzanne Weston was
sitting alone in the driver’s seat of a Holden Commodore Station Wagon which was parked in the Pendle Hill Inn car park. The applicant entered the front passenger seat of the vehicle and told Ms Weston to get out and to leave everything which Ms Weston did. The accused moved to the driver’s seat and drove the vehicle away. The applicant was subsequently arrested on 2 June 2006.

Charge 4 : On 24 June 2006 the applicant cut his right arm and put
blood from the wound into his urine. He then complained to correctional
officers that he may have kidney problems. He was taken to Nepean
District Hospital where he was medically examined. Whilst being escorted
back to the Department of Corrections vehicle, the applicant sprinted away
from the officers and made good his escape. In his evidence before the
Judge, the applicant said that on the day of the escape, he tried to
ring his mother all morning but could not get hold of her. He rang a friend
who told him that someone had burnt his mother’s house down. He was
worried so he decided to escape. The Judge observed in his
remarks on sentence that the applicant’s motivation for the escape was
that he had heard that his mother’s house had been burnt down. His
Honour noted that whilst this had proved to be so from his mother’s
evidence, the applicant “did not see his mother once he gained his liberty,
nor did he contact her for some time after he escaped.”

Charge 5 : On 2 July 2006, Sergeant Davis, driving a fully marked police
vehicle, activated the vehicle’s warning devices when at the rear of a
stolen utility being driven by the applicant. When the utility sped away, the
police officer pursued it. At the intersection of Davis and Bruge Roads,
the stolen utility came to an abrupt halt. Sergeant Davis stopped the
police vehicle. The utility reversed rapidly and rammed the front of the
police vehicle, then sped off with Sergeant Davis in pursuit. A short
distance later, the utility again came to an abrupt halt and reversed
towards the police vehicle. Sergeant Davis began to reverse his vehicle
but was unable to prevent a second collision. The police officer suffered
pain and discomfort to his neck and feared for his safety. The utility sped
off again with the police car in pursuit. At one stage during the pursuit, the
applicant’s vehicle crossed to the wrong side of the road. Given the risk to
the public, the police pursuit was terminated.

Charges 6- 7 : At about 4am on 12 July 2006, the applicant smashed the
passenger window of a parked van and took keys from it. The applicant
opened an unlocked garage and drove away a red BMW coupe. He was
able to start the BMW with the keys stolen from the van.

Charge 8: At about 5.30pm on 13 July 2006, police sighted the BMW being driven along the Forest Way, Belrose. All warning devices were activated on the fully marked Highway Patrol vehicle indicating for the BMW to stop. The BMW being driven by the applicant reversed into and collided with the police vehicle. The BMW was then pursued by police along Forest Way. As the BMW approached the intersection of Forest Way and Mona Vale Road, the BMW stopped and the applicant attempted to ram the police vehicle again. A high speed pursuit then followed through Terry Hills and Duffy’s Forest. During the pursuit, the applicant drove the BMW at speeds of up to 150 km/h, passed other vehicles by driving at speed along the break down lane and crossed over to the incorrect side of the road. After coming to a sudden stop, the BMW rammed the police vehicle and then continued driving west. When pursued by a second police vehicle, the BMW again suddenly stopped and reversed, colliding with the police vehicle forcing it to veer onto the incorrect side of the road. The BMW then accelerated away and subsequently turned into a dead-end street where it came to a complete stop and then reversed into the pursuing police vehicle causing its bonnet to fly up. When the police officer alighted from his vehicle, he saw the BMW speeding directly towards him. Fearing that he would be killed, the police officer fired two rounds at the applicant. The police officer was then forced to jump over the boot of the police vehicle to avoid being hit by the BMW. The applicant did a u-turn and then drove again at the police vehicle, crashing into its front. After the BMW came to a complete stop, the applicant was arrested.

Subjective circumstances

19 The applicant was born in July 1984 and was 23 years old at the time of sentence. The applicant gave evidence during the proceedings on sentence as did his mother. Evidence of the applicant’s subjective circumstances was also before the Judge by the tender of a report from Anita Duffy, a psychologist, and Probation and Parole pre-sentence report.

20 The applicant has no contact with his natural father who ceased his relationship with the applicant’s mother when the applicant was two years old. The applicant has an older brother. In approximately 1987, his mother entered into a relationship with a man who the applicant came to consider as his father. The applicant’s step-father had six children from a previous relationship. The applicant described this period of his childhood to be positive and nurturing. Mr Devoy, the author of the Probation and Parole report, noted that prior to his step-brother Philip’s death of a drug overdose in 1994, the applicant had been an above average student and had excelled at sports. Ms Duffy, the psychologist, reported that the applicant had been very close to Philip and had idolised him. After Philip’s death, the applicant had started “to go off the rails”, his grades and behaviour deteriorated markedly.

21 The parental relationship deteriorated after Philip’s death leading to final separation in 1996. The applicant’s behaviour continued to be challenging and in 1997 when aged 13, he was diagnosed with conduct disorder. The applicant’s mother formed a new relationship with Charlie Everjar who the applicant said introduced him to both drugs and crime. He was then in his early teens and tended to associate with Charlie and his friends who were in their late twenties or thirties. His mother’s relationship with Charlie ended about a year later when he went into custody for a number of offences. Mr Devoy reported that upon Charlie’s incarceration, the applicant decided to “carry on his step-father’s criminal trade”. He was expelled from school in Year 7 and entered into a pattern of habitual offending with a strong nexus of substance abuse. The applicant had commenced smoking cannabis at about 11 or 12 years old and progressed to amphetamines and heroin. In about 2001, he was referred to the Youth Drug Court and remained on a rehabilitation program for 12 months which he successfully completed. Unfortunately, he relapsed and became addicted to heroin. When released from custody in 2006, he became addicted to crystal methamphetamine hydrocholoride (“ice”) and following his escape he used “ice”. The Judge noted in his sentencing remarks that the applicant told the psychologist that after his escape, he was “out of it”, “on ice”, and had been without sleep for about 10 days. His Honour said that “this in part sheds some light on his bizarre, violent, crazy behaviour on 12 July”.

22 At about 9 years of age, the applicant was diagnosed with Attention Deficit Hyperactivity Disorder for which he was prescribed Ritalin. He was diagnosed with an auto-immune chronic active hepatitis, a liver disease, at age 14 years. He has been prescribed a variety of medications including prednisone. The applicant has a daughter who was born in January 2002 with whom he regularly keeps in touch. His girlfriend has re-married.

23 The applicant’s criminal history reveals a lengthy prior record of offending including convictions for assault occasioning actual bodily harm, common assault, robbery whilst armed with a dangerous weapon, robbery whilst armed with an offensive weapon, possession of housebreaking implements and various driving offences. As the Judge succinctly said “the [applicant’s] criminal history is extensive, varied and violent”. His Honour observed that the applicant “has benefited from probation, but has also spent considerable time in detention.”

24 On 17 May 2004 the applicant was sentenced in the District Court at Penrith for the offence of robbery whilst armed with a dangerous weapon to a term of imprisonment of 5 years commencing 10 November 2002 and expiring 9 November 2007 with a non-parole period of 3 years commencing 10 November 2002 and expiring 9 November 2005. The sentence was directed to be served at a Juvenile Detention Centre. It is an aggravating factor that the offences in March 2006 (charges 1-3) were committed whilst the applicant was on parole for this offence.

25 The offences in July 2006 (charges 6-8) were aggravated by being committed after the applicant had escaped from lawful custody. The commission of an offence by an escapee is more serious than that of a person who offends while on conditional liberty as an escapee is not lawfully at liberty at all: R v King [2003] NSWCCA 352 per Grove J at [38].

The appeal

26 The applicant, who was self represented, relies upon the following grounds:

1. Sentence is manifestly excessive.
2. Judge did not adequately reflect special circumstances in his final sentence.

3. Judge did not adequately regard all health problems.

4. Judge did not have sufficient regard to introduction to crime by step-father when too young to make a considered decision himself.
5. Judge did not have regard to traumatic losses and lack of grief counselling.

27 The applicant sought to rely on documentary material annexed to his affidavit sworn 19 July 2010. The Crown objected to the Court receiving the material on the basis that it is fresh evidence. All of the annexed material relates to the applicant’s medical condition which was canvassed in some detail during the proceedings on sentence. A report dated 19 April 2009 from Professor Andrew Lloyd provides recent information about the applicant’s auto-immune hepatitis. A letter dated 18 February 2009 from W John Taylor, a clinical forensic psychologist, was also tendered by the applicant. I propose to admit the tendered material if error is demonstrated and the Court considers whether any lesser sentence should be imposed. Two affidavits of Steven Thompson, tendered by the Crown and objected to by the applicant, will be admitted on the same basis.

Ground 1 Sentence is manifestly excessive

28 There is no merit in the applicant’s contention that his sentence is manifestly excessive. His criminal offending both before and after the escape was appalling. The applicant’s Ramboesque use of stolen motor vehicles to drive at terrifyingly high speeds and to ram pursuing police vehicles, whilst fuelled on “ice”, was behaviour which called for strong denunciation and personal and general deterrence in the sentence. The offences involved, at the least, the real risk of serious injury to police officers and to the members of the public. The applicant can consider himself fortunate that the shots fired by the police officer missed him. The police officer should not have been put in a position that he feared for his life. The maximum sentence for the offences contrary to s 33B Crimes Act was 12 years. For charge 5, the applicant’s sentence was one of 3 years with a non-parole period of 2 years. As a result of partial accumulation, the effective non-parole period was 12 months. For charge 8, the applicant was sentenced to imprisonment for 3 years 6 months with a non-parole period of 2 years. As a result of partial accumulation, the effective non-parole period was 2 months. These sentences could hardly be described as excessive.

29 The sentence of a fixed term of 12 months for the escape (charge 4) which has a maximum penalty of 10 years imprisonment was not excessive and perhaps generous, to the applicant. The applicant’s escape was cleverly calculated. By cutting himself and mixing his blood with his urine, he was able to persuade the correctional officers that he may have had a problem with his kidneys which required medical review. The prisoner’s explanation for the escape being his concern for his mother whose house had burnt down could not have mitigated the offence. Rather than providing any relief to his mother’s misfortune, the applicant took the opportunity to commit further offences. Prisoners must understand that any offence of escape will result in a meaningful sentence and strong elements of both specific and general deterrence are required. The objective seriousness of the applicant’s escape was increased by his criminal offending until his apprehension: R v Pham [2005] NSWCCA 94 per Wood J at [16]-[19].

30 The commencement date for the sentence of the offence of escape was fixed by the Judge to be 12 September 2006. By fixing such a date, his Honour extended a degree of leniency to the applicant whose parole had been revoked for reasons unconnected with his offending and his parole was not due to expire until 29 December 2007.

31 The s 154(C)(1)(b) offence (charge 3) was also serious. The applicant’s brazen conduct undoubtedly had a significant impact upon Ms Weston who had the misfortune to be sitting in the vehicle. Considerations of specific and general deterrence are important in car-jacking offences and the effective non-parole period of 3 months for this sentence could, by no means, be regarded as being excessive.

32 It is unnecessary to consider all of the individual sentences imposed by the Judge. The applicant’s overall criminality was of a high order and the offending was committed whilst he was either on parole or at large following his escape. The first ground of appeal has not been established.

Ground 3 Judge did not adequately regard health problems.

33 I propose next to consider the third ground as this ground was the focus of the applicant’s oral and written submissions. The applicant contended that the Judge did not give sufficient emphasis to his health problems when his Honour stated in his sentencing remarks that they made the applicant’s time in prison only slightly more onerous. The applicant said that his medical condition required him to stay at the Metropolitan Special Programs Centre (MSPC) at Long Bay Gaol “pretty much” for the remainder of his sentence thereby denying him the opportunity of undertaking educational and rehabilitative courses.

34 There were no submissions made by Ms Duchen, the applicant’s solicitor, to the Judge during the sentencing proceedings that the treatment and supervision of the applicant’s auto-immune hepatitis required him to stay at Long Bay. The particular concern was the applicant was not receiving his medication whilst in custody. Ms Duchen acknowledged that the applicant’s problems in accessing rehabilitation programs was caused by his escape when she said (T 50 L 49-55):

“ But as far as the counselling for the drug problems and the rehabilitation problems that setting aside the violent offending problems the major programs that exist he’s not ever going to be able to have access to because of his status as a maximum security prisoner. Now that is his own fault and he’s got that because he escaped, I acknowledge that.”

35 The Crown Prosecutor strenuously contested the applicant’s assertion that Corrective Services had failed to provide his medication to him and asked for the opportunity to access the applicant’s records. The Judge responded by saying that he did not propose to make any adverse findings about that matter. His Honour went on to say (T 55 L 28-32):

“ I was just going to build that into an understanding that he does have some health problems while he’s in prison. That provides a certain amount of – more onerous prison conditions on him. Slightly, I don’t think it’s serious.”

36 When he came to sentence the applicant, the Judge was mindful of the early diagnosis of attention deficit disorder and auto-immune chronic hepatitis. His Honour said (ROS at 10):

“He told me that he has suffered from an early age from attention deficit disorder (for which he has been prescribed Ritalin) and that he also has auto immune chronic active hepatitis, which will require medication for the rest of his life. It is a rare liver disease.”

37 And further (ROS at 25):

“I have also taken account of his serious health problems, and because of them, his time in prison will be more onerous than others would be, though I assess this is only slight”.

38 In my opinion, the Judge gave appropriate weight to the considerations before him of the applicant’s health. This ground of appeal has not been established.

Ground 4 : Judge did not have sufficient regard to introduction to crime by step-father when too young to make a considered decision himself.

Ground 5 : Judge did not have regard to traumatic losses and lack of grief counselling.

39 It is convenient to deal with these grounds together. The applicant contended in written submissions that his offending behaviour commenced under the influence of his mother’s partner when he was very young and far too young to make an informed decision. He submitted that the Judge should have had more regard to the fact that he was so strongly influenced by his mother’s partner Charlie Everjar. It appears that in the fifth ground of appeal the applicant was referring to the death of his step-brother Philip.

40 The Judge in his sentencing remarks gave a detailed consideration of the applicant’s subjective circumstances. His Honour observed that the applicant and Philip were very close and his death had a big effect on him. His Honour noted that Mr Everjar had had a “very bad influence” on the applicant introducing him to substance abuse.

41 When considering special circumstances, the Judge said (ROS at 25):

“This offender’s drug related offences and his introduction to drugs began at a very early age. He was encouraged by his step-parents and his mother’s partners. When he started on this track, it seems to me, because of his unstable life, because of his traumatic experiences, and because of his psychological condition, he was unable to make a truly informed decision. That is not to say that he is not substantially criminally responsible for his behaviour in the offences for which I am to sentence him.”

42 The Judge, in my view, sympathetically considered all of the applicant’s difficult upbringing and gave sufficient weight to his subjective circumstances. The fourth and fifth grounds are not established.

Ground 2 : Judge did not adequately reflect special circumstances in his final sentence.

43 The applicant complained that his Honour kept stating that he found special circumstances but the findings were not reflected in the total effective sentence. The Crown acknowledged that the total non-parole period of 5 years 11 months was 79.8 per cent of the total sentence of 7 years 5 months which was more than the 75 per cent ratio contemplated by s 44 Crimes (Sentencing Procedure) Act 1999. The Crown, however, referred to his Honour’s detailed consideration of the structure of the sentences and argued that the Judge turned his mind to the effective length of the parole period which he considered to be appropriate in the circumstances.

44 The Judge found special circumstances in the applicant being “a young man” who was in need of “lengthy and close supervision.” When the Judge pronounced the sentences for charges 1,3,5,6 and 8, he expressly found special circumstances. It make little sense that his Honour, having found special circumstances, intended to fix the balance of the term of the total sentence as being about one-quarter of the total non-parole period which is less than the statutory ratio of one-third contemplated by s 44(2) Crimes (Sentencing Procedure) Act. His Honour had a difficult sentencing task and, in my respectful opinion, his intention to reflect a finding of special circumstances by a variation of the statutory ratio was overlooked in the total sentence. Ground 2 has, in my opinion, been made out.

45 There is another matter which was raised in written submissions by the applicant. He complained that the compensation awarded by the Judge was “ridiculous” as he was unable to afford that amount of money and felt that his Honour had not thought about his circumstances. The applicant’s complaint about the compensation order was not the subject of a ground of appeal nor did he raise his complaint during oral submissions.

46 Although the Judge did not provide specific reasons for the compensation order, I have little doubt from his extensive remarks on sentence that he considered that by making an order for monetary compensation the applicant might better appreciate the extent of the destruction to other people’s property that he had caused. The order that his Honour made was within his mandate and I do not propose to interfere with it.

Intervention?

47 Although error has been established, the question remains whether any lesser sentence is warranted: s 6(3) Criminal Appeal Act 1912. I am mindful that the non-parole period itself must appropriately reflect the criminality involved in the offences: R v Simpson (2001) 53 NSWLR 704 per Spigelman CJ at [70]. In considering the question of intervention, it is necessary to have regard to the material tendered by the applicant and the Crown during the hearing of the appeal.

48 Of particular significance in the applicant’s tender is a report dated 19 April 2009 from Professor Andrew Lloyd. Professor Lloyd is an infectious diseases physician who has been treating the applicant since 2004. Professor Lloyd reports that the applicant has auto-immune hepatitis and is also chronically infected with hepatitis C which he describes as “a particularly unfortunate combination of diseases”. The applicant is receiving daily prednisone and azothiprine tablets for auto-immune hepatitis, regular (secondly monthly) blood tests to monitor his liver status and annual screening by ultrasound and measurement of the serum level of alpha – fetoprotein for cirrhosis and hepatocellular carcinoma. This screening is available through Professor Lloyd’s clinic at Long Bay Gaol. Professor Lloyd states:

“ As this condition requires specialised hepatological care, it has been somewhat problematic to ensure that [the applicant] is not moved to centres other than Long Bay (where such services are either unavailable or restricted) and also to ensure that his medication is not inadvertently discontinued – which may be life threatening.”

49 Professor Lloyd opined that the applicant has at least a 30 per cent chance of becoming cirrhotic and developing liver failure over the next decade.

50 As has been recounted at [33] above, it is the applicant’s contention that he is confined to serving his sentence at the Long Bay MSPC and will be denied educational opportunities and the chance of rehabilitation. The letter from Corrective Services, which is annexed to Mr Thompson’s affidavit, however, details the applicant’s transfer to the Junee Correctional Centre from 22 December 2009 until 22 May 2010 and refers to the educational courses that might be available at that facility. It is evident, nevertheless, that Professor Lloyd considers that the applicant should remain at Long Bay Gaol for specialised hepatological care.

51 During oral submissions the applicant, an obviously intelligent young man, said that he had attended a restorative justice program at Parklea Gaol where he had met the victim of his car-jacking offence and the things that he had done to her life “absolutely blew him away”. He said as he was now 26 years old, he wanted to get his life “together”. The applicant had written to Mr Taylor the psychologist who runs an Ex-Inmate program and his letter in response which specifies the conditions of the program is in evidence.

52 Whilst I am not convinced that the applicant’s limited educational opportunities arise entirely from his confinement in the MSPC and may be attributed in part to his escape, I am persuaded that this Court should intervene to give effect to the Judge’s finding of special circumstances which was well-founded.

53 Error having been identified, the Court, in my view, should form as required by s 6(3) Criminal Appeal Act an opinion that “some other sentence …is warranted in law and should have been passed.”

54 A total effective sentence of 7 years 5 months with a non-parole period of 5 years 5 months appropriately reflects the totality of the criminality. Such may be achieved by varying the commencement and expiration dates of the sentence for charge 6 and by reducing the length of the non-parole period and increasing the balance of term of the sentence for charge 8. All of the other sentences imposed by the Judge are confirmed.

55 As the applicant’s notice of application for leave to appeal was about 5 months out of time, an extension of time to appeal is required. The delay is sufficiently explained by his self-representation and incarceration.

Orders

56 I propose the following orders:

(i) Leave to extend time to appeal be granted.

(ii) Leave to appeal be granted.

(iii) Quash the dates of the commencement and expiration of the sentence imposed by Geraghty DCJ on charge 6 being a charge of break, enter and steal on 12 July 2006 contrary to s 112(1) Crimes Act.

(iv) Sentence the applicant to imprisonment with a non-parole period of 2 years 3 months to commence 12 September 2009 and to expire on 11 December 2011 with a balance of term of 1 year 3 months expiring on 11 March 2013 for charge 6.

(v) Quash the sentence imposed by Geraghty DCJ on charge 8 being a charge of using an offensive weapon, namely a motor vehicle, to prevent lawful detention on 13 July 2006 contrary to s 33B Crimes Act .

(vi) Sentence the applicant to imprisonment with a non-parole of 18 months to commence 12 August 2010 and to expire 11 February 2012 with a balance of term of 2 years to expire 11 February 2014 for charge 8.

57 The total effective sentence is imprisonment with a non-parole

period of 5 years 5 months commencing 12 September 2006 and expiring on 11 February 2012, with a balance of term of 2 years expiring on 11 February 2014. The earliest date the applicant is eligible to be released on parole is 11 February 2012.

58 McCALLUM

: I have read the judgment of Price J. Except as to the question of compensation, I agree with his Honour’s reasons and the orders proposed. I also agree with the additional remarks of Allsop P.

59 The judge said “I make an order that compensation be paid in the sum of $27,338.89”. There is no other reference to that issue in the remarks on sentence. It appears from the submissions made at the sentence hearing (T35.19, 13 April 2007) that the order related to an application made by the Crown in respect of the damage occasioned to two police cars when the applicant rammed them with a BMW he was driving. Those were the events founding the charge of using an offensive weapon to prevent lawful detention (charge 8).

60 His Honour undoubtedly had power to make such a direction under section 77B of the Victims Support and Rehabilitation Act 1996, which provides:

77B Directions for compensation
(1) If a person is convicted by a court of an offence, the court may (on the conviction or at any time afterwards) on notice given to the offender direct that a specified sum be paid out of the property of the offender:
(a) to any aggrieved person, or
(b) to any aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted.
(2) A direction for compensation may be given by a court on its own initiative or on an application made to it by or on behalf of the aggrieved person.

61 Section 77D of the Act is a mandatory provision specifying the matters to which the Court is required to have regard in determining whether or not to give the direction for compensation. That section provides:

77D Factors to be taken into consideration
In determining whether or not to give a direction for compensation, and in determining the sum to be paid under such a direction, the court must have regard to:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the aggrieved person that directly or indirectly contributed to the loss sustained by the aggrieved person, and
(b) any amount that has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted, and

(c) such other matters as it considers relevant.

62 Any sum the subject of such a direction must be paid “immediately” or within such period as is specified in the order. If the sum is not paid, the direction may be enforced in the manner specified in section 77F of the Act. The effect of that section is that the “aggrieved person” in respect of whom the direction was made can obtain judgment in his favour for any unpaid amount. I note that the relevant aggrieved person is not identified in the order made in the present case and that matter alone may raise an issue as to its enforceability.

63 As noted by Price J, the applicant’s complaint is that he has no capacity to pay the amount of money ordered to be paid. Although that contention was not formally articulated in any ground of appeal, it was addressed in the applicant’s written submissions and responded to by the Crown. I am satisfied, in those circumstances, that it is appropriate to consider the issue.

64 The question of the offender’s capacity to pay the compensation sought was considered in Connor v The Queen (2005) 158 A Crim R 389. In that case, Studdert J said at [41] (McClellan CJ at CL and James J agreeing):

“the asserted impecuniosity of an offender against whom a direction is sought pursuant to section 77B ought not ordinarily be regarded as a reason for declining to make a direction under the section. An offender’s impecuniosity may be temporary. His financial position may change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false”.

65 That is not to say, however, that impecuniosity will never be a relevant consideration. Indeed, it is implicit in those remarks that the Court may have regard to that issue in some cases, on the basis identified.

66 It may be accepted that section 77D does not direct explicit attention to the circumstances of the offender. Nonetheless, the Court is required in entertaining an application under section 77B to have regard to all the circumstances of the case: Connor at [42].

67 In determining the matters relevant to the making of an order, the Court will have primary regard to the objects of the Victims Support and Rehabilitation Act 1996 identified in section 3 of the Act, which provides:

3 Objects of Act

The objects of this Act are as follows:

(a) to provide support and rehabilitation for victims of crimes of violence by giving effect to an approved counselling scheme and a statutory compensation scheme,

(b) to enable compensation paid under the statutory compensation scheme to be recovered from persons found guilty of the crimes giving rise to the award of compensation,

(c) to impose a levy on persons found guilty of crimes punishable by imprisonment for the purpose of funding the statutory compensation scheme,

(d) to give effect to an alternative scheme under which a court may order the person it finds guilty of a crime to pay compensation to any victim of the crime.

68 In the present case, the victim of the damage to the police cars was not specifically identified but was presumably ultimately the State of New South Wales. The Crown contends in its written submissions that the order “may also include the damage to the BMW” but I do not think that can be the case. If it were, it would have been necessary for the order to identify a separate “aggrieved person” and the discrete amount attributable to that damage for the purpose of enforcement of the direction in accordance with section 77F.

69 There can be no doubt that the power to direct compensation under section 77B is a broad one. I accept, as stated by Price J, that the order made by the sentencing judge in the present case was within his Honour’s mandate, but his Honour had first to have mandatory regard to section 77D. In particular, his Honour was obliged to turn his mind to any matters his Honour considered relevant to the question whether or not to make the direction sought.

70 I accept that it would have been open to his Honour to make the direction notwithstanding its potential draconian impact on the applicant. Before doing so, however, his Honour was required to have regard (in my view) at least to the amount sought and the identity of the victim of the crime for whose benefit the application was made. In my view, it would also have been relevant, in the circumstances of the present case, to have regard to the applicant’s capacity to pay such a large sum but I accept that is an issue on which reasonable minds might differ.

71 The difficulty is that his Honour made no reference to the relevant legislation and there is nothing in the remarks on sentence to indicate that his Honour had regard to the matters he considered relevant in accordance with section 77D. In my view, his Honour’s discretion miscarried in that respect and I would be inclined to annul the compensation direction under section 9(2) of the Criminal Appeal Act 1912.

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