Howard v The Queen

[2015] NSWDC 317

District Court

New South Wales

Medium Neutral Citation:	Howard v R [2015] NSWDC 317
Decision date:	04 June 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	1. Leave granted to the appellant to withdraw his appeals in respect of counts 3, 4, 5, 6 and 7 listed on exhibit A. 2. Matter adjourned.
Catchwords:	CRIMINAL LAW – appeal against sentence – string of theft offences – drug possession – extensive criminal record – purposes of sentencing – general deterrence – protection of the community – rehabilitation – special circumstances for altering the ratio between head sentence and non-parole period – insight into offending behaviour – desire to enter full time rehabilitation facility – not appropriate for offender to be released into the community – indication of final orders – adjournment granted pending acceptance to a full time residential rehabilitation facility
Legislation Cited:	Crimes Act 1900 (NSW), s 117
Category:	Principal judgment
Parties:	Regina (Respondent) Damon John Howard (Apellant)
Representation:	A Baker, Director of Public Prosecutions (NSW) (Respondent) T Scott, Scott Murrell Lawyers (Appellant)
File Number(s):	2014/00337201
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 31 March 2015 Before: McCosker LCM File Number(s): 2014/00337201

Judgment

1. Damon John Howard - as he himself admits - has an appalling criminal history. He commenced offending when he was under eighteen and over the years until now (he is thirty-three), he has been to prison many times. Most of the offences are Local Court offences with some exceptions. He was charged with break and enter and stealing and was dealt with in the District Court.

2. Damon Howard comes before me because of yet further offending. He has appealed from sentences imposed on him by Magistrate McCosker sitting at Taree Local Court. On 31 March this year his Honour sentenced Damon Howard to an effective sentence of eighteen months imprisonment and an effective non-parole period of fifteen months. It commenced on 20 January 2015 and the overall sentence is due to expire on 18 July 2016. The non-parole period commenced on the same day but is due to expire on 18 April 2016.

3. The crimes that his Honour was sentencing Damon Howard for all involved theft or fraud. One of them was a drug offence. The theft offences were from businesses in Taree which included a discount chemist, Bing Lee and Officeworks. Three of the crimes he committed were larceny under s 117 of the Crimes Act 1900. He stole items from those three businesses. For each of those offences he was given a prison sentence. He was given nine months for the theft from Officeworks, twelve months for the theft from Bing Lee and again nine months for the theft from the discount chemist. His Honour directed that two of the sentences - those for the thefts from Officeworks and Bing Lee, which occurred about ten days apart - be served concurrently. One was longer than the other but the effect was that one of the sentences was subsumed by the other. However, for the theft from the discount chemist, which occurred a couple of months later, the Magistrate imposed a further sentence of nine months and directed that it commence at the expiry of the non-parole period for one of the earlier sentences. That produced the overall sentence, as I said, of eighteen months and the non-parole period of fifteen months.

4. His Honour was also dealing with Mr Howard for offences of possessing cannabis, stealing Medicare and pension cards and offences to do with obtaining items from a chemist fraudulently. His Honour imposed fixed term sentences for those, all of which have now expired.

HIS HONOUR: I will just depart from my reasons, here, are you pursuing those appeals?

SCOTT: No, I wish to seek to withdraw those appeals.

HIS HONOUR: In due course I will grant leave to withdraw those appeals.

5. When Damon Howard committed the theft from Officeworks and stole some computer equipment, he was accompanied by two others. One was his life partner Laura Pope. She pleaded guilty to shoplifting and was convicted and fined. Her criminal record is nowhere as serious as Mr Howard’s and in fact she did not commence committing crimes until she was aged thirty-one, whereas Mr Howard started his criminal activity as a teenager.

6. There is a pre-sentence report about Mr Howard which was presented to his Honour. It assessed him as having a medium risk of re‑offending. It assessed him as not being eligible for a particular program dealing with drugs in custody because he is on the methadone program in custody. It described Mr Howard as “communicative and cooperative” and as appearing “to have gained some insight” into his criminal behaviour. The report noted that he “recognised the need to address his now entrenched substance dependence issues and its link to his criminal convictions, verbalising his want to address his issues in an appropriate manner.”

7. Mr T Scott, who appears for Mr Howard in the appeal, called his client to give evidence. Through his client he tendered a letter written by his client acknowledging his offending behaviour and its link to his drug taking and indicating that he was wanting to turn his life around and be a role model for his two sons. That has not occurred to date. Mr Howard has got himself onto the methadone program in custody and is doing the Equip Program for addictions to drugs and alcohol. His methadone intake is being reduced, indicating that he is progressing in that treatment.

8. What Mr Howard told Mr Scott - and Mr Scott bases his argument on this - is that he wants to enter a full time drug rehabilitation facility on his release. He has done counselling before through Probation and Parole, but he tells me has never done a live-in rehabilitation course. This coincides with his acknowledgment that he is now thirty-three and needs to make a serious decision about what direction his life is heading in. He is supported by his partner Ms Pope, who is in Court today.

9. The effective non-parole period which his Honour imposed represented eighty-three per cent of the head sentence. The sentencing law envisages a usual non-parole period of seventy-five per cent. In special circumstances I can reduce a non-parole period to allow an offender more time on parole so that they can rehabilitate themselves.

10. This is a case where the principles that a judge takes into account in sentencing someone point in different directions. On the one hand, a judge has to make sure that the sentence imposed on an offender provides adequate punishment for their crimes, deters the offender and others from committing similar offences and protects the community from the offender. The sentence has to denounce the conduct of the offender. On the other hand, the purposes of sentencing include promoting the offender’s rehabilitation.

11. The community needs protecting from Damon Howard because of all of the offences he has committed in the past. To release him early puts the community at risk that he will go back to his offending behaviour. On the other hand, if I take into account his rehabilitation I could release him early and see how he goes in the full time rehabilitation that he wants to do. That is a risk because it may not work and he may go back to committing crimes within the community. But if it is successful, it means that he re‑enters the community after his course in a rehabilitated state and leads a law abiding life as a partner and as a father. He is a concreter by trade, so hopefully he would gain some employment as well. As I said, I can reduce the non-parole period for an offender if there are special circumstances.

12. Mr A Baker appears for the respondent to the appeal, who is the Director of Public Prosecutions. He points out that evidence, although heartfelt, that an offender wants to change their ways is not really sufficient, particularly in an offender such as Mr Howard. But Mr Baker fairly acknowledges that allowing Mr Howard an opportunity to do an extended time in a live-in residential centre would amount to special circumstances for reducing the non‑parole period.

13. I too am of that opinion independently. Despite the risk involved to the community I would be prepared to reduce the non-parole period Mr Howard is serving to nine months (that is a fifty per cent reduction), provided he left prison and went straight to a residential rehabilitation centre. The nine months does not expire until the middle of October.

14. At this stage it is probably too early to have a commitment from any facility about a bed definitely being available. For that reason what I have in mind is to adjourn the case to a date in October and to find out at that stage whether there is definitely a bed available in a facility for Mr Howard. If there is then I would allow his appeal, reduce his non-parole period to nine months, direct his release on 19 October 2015 provided he goes straight from the prison to a residential rehabilitation centre and stays there for the duration of any program and accepts all reasonable recommendations and directions by staff at that centre. That, to my mind, would be a course which would hopefully reduce the risk of Mr Howard offending again but at the same time provide for him spending more time in full time custody from now until October to make him accountable for the crimes that he has committed.

15. For those reasons I will not make any final orders today disposing of the appeals with the exception of the withdrawals and I will adjourn the case to a date in October.

16. My formal orders will include these. In respect of counts 3, 4, 5, 6 and 7 listed on exhibit A I note that all of those sentences have expired and I grant leave to the appellant to withdraw his appeal in respect of those sentences.

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Decision last updated: 13 January 2016