Hanna v The Queen

[2016] NSWDC 292

District Court

New South Wales

Medium Neutral Citation:

Hanna v R [2016] NSWDC 292

Hearing dates:

19 September 2016

Date of orders:

19 September 2016

Decision date:

19 September 2016

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

Sentence passed by the Local Court at Waverley on 29 June 2016 in respect of sequence 1 set aside

 

In lieu thereof, appellant sentenced to imprisonment for four months, commencing on 23 May 2016 and expiring on 22 September 2016

 

Sentence passed by the Local Court at Waverley on 29 June 2016, in respect of sequence 5 set aside

 In lieu thereof, appellant sentenced to imprisonment for 12 months. Non-parole period of four months, commencing on 23 May 2016 and expiring on 22 September 2016. Further period of imprisonment of eight months to expire on 22 May 2017

Catchwords:

CRIMINAL LAW – Appeal against severity of sentence – Sentence of 12 months imprisonment with a 7 month non-parole period for 6 offences – (i) possessing implements to drive or enter conveyance; (ii) custody of a knife in a public place (3rd such offence); (iii) 4 offences of possession of unlawfully obtained goods – Appellant’s illicit drug use required rehabilitation – After four months in gaol appellant not able to enter any rehabilitation program – Arrangements made for appellant to enter drug rehabilitation in the community as well as an apprenticeship – Sentences varied – Effective head sentence of 12 months imprisonment with a non-parole period of 4 months

Category:

Principal judgment

Parties:

Andy Hanna (Appellant)
Director of Public Prosecutions(NSW) (Respondent)

Representation:

Solicitor for Legal Aid (NSW) (Appellant)
Solicitor for the Director of Public Prosecutions(NSW) (Respondent)

File Number(s):

2016/158509

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Waverly Local Court

Jurisdiction:

Criminal

Date of Decision:

29 June 2016

Before:

Barko LCM

File Number(s):

2016/158509

Judgment

1. HIS HONOUR: This is an appeal against the severity of sentence by Magistrate Barko sitting in the Waverley Local Court on 29 June 2016. The appellant was sentenced for six offences. In essence, the appellant was sentenced to 12 months’ imprisonment commencing on 23 May 2016, the date on which he was taken into custody, with a non‑parole period of seven months. The seven month non‑parole period is to expire on 22 December 2016.

2. The appellant’s criminal history, whilst it might be thought to be long, contains a large number of relatively minor offences. The offences all appear to be related to a problem that the appellant has with addiction to illicit drugs. The drugs which have been mentioned during the course of this appeal are crystal methylamphetamine, or ice, and cannabis. The appellant was in gaol for eight months between 14 August 2015 and 11 April 2016. The first set of offences in respect of that period of imprisonment, were committed in 2014. The second period of that sentence commenced on 12 January 2016 and represented a sentence of nine months with a non‑parole period of three months. The non‑parole period of three months expired on 11 April 2016 when the appellant was released on parole. The current set of offences were committed whilst the offender was on parole on 23 May 2016. The sentences that commenced on 12 January 2016, were for custody of a knife for a second time, in a public place, larceny, possessing implements to enter or drive conveyance, and a further charge of larceny.

3. The offences for which the appellant was sentence by Magistrate Barko, were, one count of possessing implements to drive or enter a conveyance, one count of custody of a knife in a public place, this being the third time that the appellant had committed that offence, and four counts of unlawfully obtaining goods. In respect of each of the unlawfully obtained goods charges, the learned magistrate imposed a sentence of imprisonment of four months. The maximum term that could be imposed was six months, and, accepting that the appellant pleaded guilty at the earliest available opportunity, which he did, the maximum that should have been imposed for each offence was four and a half months. When one considers what the goods obtained were, one can understand that the sentences imposed were excessive in the circumstances. He had in his possession, two New South Wales driver’s licences which had been stolen. They belonged to different persons. The third item was a St George Visa Debit Card belonging to a person from whom it had either been taken or misplaced but there was no suggestion that any attempt was ever made by the appellant to use that St George Visa Debit Card or to misuse either of the New South Wales driver’s licences.

4. The fourth count of goods obtained was a large number of silver and “gold” coins, having a total value of $22.60. To go to gaol, for four months for $22.60 is, in this Court’s experience, excessive. The chattel that was the subject of the first charge, that of possessing an implement to enter or drive a conveyance, was a single socket described as being, “silver”, but probably meaning chrome plated, which had an hexagonal end but the edges of which socket were sharp and could be used for smashing windows of motor vehicles. The knife in question was in fact a multi‑tool, containing a number of knife blades amongst other tools probably, and one of the blades when extended could give the tool a total length of 16 centimetres. The appellant was picked up by the police because he acted suspiciously, in their experience, because when he saw them, he walked away from them.

5. Courts are constantly told by Corrective Services that sentencing to imprisonment for less than six months, whilst it may have a punitive effect, does not carry with it any rehabilitative effect, because Corrective Services are unable to offer any courses if the period of custody is less than six months. Here there is a period of custody of seven months but thus far, the appellant has been to a large number of Corrective Services institutions since he has been admitted to the custody of Corrective Services on 24 May 2016. He has been at Parklea Correctional Centre, Kariong Correctional Centre, the Silverwater Metropolitan Correctional Centre, the South Coast Correctional Centre, the Bathurst Correctional Centre and the Oberon Correctional Centre, and has recently been returned to the Bathurst Correctional Centre, no doubt in order to facilitate his being transported to Sydney for the hearing of this appeal. In other words, little if any, rehabilitation could have been performed between 24 May 2016 and today’s date, 19 September 2016, a period of four months almost.

6. I am afraid that the current sentence, although perhaps constructed with the best of intentions, will not offer any rehabilitation to the current offender. Objectively, the sentences are severe and will not provide to the appellant any rehabilitation. What he really needs is rehabilitation from his illicit drug addiction. Through his counsel, he tells me that he realises this, as do his parents with whom he lives. On his release from custody, he will seek his own drug rehabilitation regime if none can be provided to him by Community Corrections whilst at liberty, and furthermore, his parents have insisted that he engage in drug rehabilitation as a condition of staying with them. He has also been offered an apprenticeship as an electrician which, together with drug rehabilitation, would put the appellant on the track to becoming a valued and worthwhile member of our community.

7. I have formed the view that I should allow the appellant to be released from custody after four months and that he shall spend the following eight months on parole, in the expectation that he engage in drug rehabilitation. I am also of the view that the longer sentence should be imposed, not for the crime of possessing implements to enter or driver a conveyance, but rather the offence of having a custody of a knife in a public place, that being the third time on which that offence had been committed.

8. For those reasons, I set aside the sentence passed by the Local Court at Waverley on 29 June 2016 in respect of sequence 1. In lieu thereof, I sentence the appellant to imprisonment for four months, commencing on 23 May 2016 and expiring on 22 September 2016.

9. I set aside the sentence imposed by the Local Court at Waverley on 29 June 2016, in respect of sequence 5. I sentence the appellant to imprisonment for 12 months. I fix a non‑parole period of four months, commencing on 23 May 2016 and expiring on 22 September 2016. The further period of imprisonment is eight months which will expire on 22 May 2017. It is a condition of the offender’s release on parole that he obey all reasonable directions of the Probation and Parole Service, with regard to alcohol and other drug rehabilitation, counselling and testing, including attending any residential rehabilitation course that may be offered to him.

10. Any other orders sought?

11. JAEGER: No your Honour.

12. HIS HONOUR: I confirm the rest of the sentences.

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Decision last updated: 08 November 2016