Howard v The Queen (No 2)

[2015] NSWDC 318

District Court

New South Wales

Medium Neutral Citation:	Howard v R (No 2) [2015] NSWDC 318
Decision date:	28 October 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	1. Appeals against sentence allowed under s 20(2) of the Crimes (Appeal and Review) Act 2001. 2. Sentence imposed by the Magistrate set aside and an aggregate sentence of 18 months with a non-parole period of 9 months and 9 days imposed. 3. Released to conditional parole on 28 October 2015 under s 50 of the Crimes (Sentencing Procedure) Act 1999.
Catchwords:	CRIMINAL LAW – appeal against sentence – string of theft offences – drug possession – purposes of sentencing – final orders – offender released on parole to residential rehabilitation centre
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s 20(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50, 53A
Category:	Consequential orders (other than Costs)
Parties:	Regina (Respondent) Damon John Howard (Apellant)
Representation:	Solicitors: A Degnan, 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. On 4 June 2015 I delivered a judgment on an appeal. The appeal was by Damon John Howard against sentences imposed upon him by a Local Court Magistrate at Taree. For the reasons that I then gave, I adjourned the appeal proceedings to today.

2. In summary, I had in mind that Mr Howard should serve more time in custody but also I was prepared to give him more time on parole provided he had a bed at a rehabilitation centre and could be released from custody to that facility.

3. The case has come back before me today. I have additional material. Exhibit B is an update assessment of an earlier pre-sentence report. Mr Howard has successfully completed a horticulture course whilst he has been in custody and the report says that he has been accepted into a rehabilitation centre. The report said that "Mr Howard appears motivated to address his alcohol and drug issues" and is willing to enter into rehabilitation. The author thought that Mr Howard would benefit from some supervision.

4. Exhibit 2, tendered today by Mr Scott (who is still appearing for Mr Howard), was a note from the senior program support officer at Benelong's Haven dated yesterday confirming that Mr Howard "has been accepted into our Program based on the information provided" on his application form. A bed is available from today.

5. The pre-sentence report, I should say, did mention one institutional misconduct item a couple of months ago. I know nothing about the circumstances of that. It is not enough for me to change the course of action which I had in mind.

6. When I delivered judgment in June, I said that if a bed was available at a rehabilitation centre I would reduce Mr Howard's non-parole period to nine months and direct his release, provided he goes straight from prison to a centre and stays there for the duration of any program, accepting recommendations and directions by staff. I now propose to resolve his three outstanding appeals in that way.

7. I propose to impose one aggregate sentence instead of three by using s 53A of the Crimes (Sentencing Procedure) Act1999 (NSW). The sentences I would have imposed, but for the aggregate sentence, are these. In respect of count 1 of larceny, I would have imposed the nine months sentence imposed by the Magistrate and I would have fixed a non-parole period of six months as imposed by the Magistrate. In respect of count 2 of larceny, I would have imposed the twelve months sentence fixed by the Magistrate and the nine month non-parole period fixed by the Magistrate. Each of those two sentences and the non-parole periods would have commenced on 20 January 2015. In respect of count 8 - and I am referring to the numbered offences in exhibit A - I would have imposed the nine months prison sentence fixed by the Magistrate commencing 19 October 2015. However, in respect of that sentence I would have fixed a non-parole period to commence on 19 October 2015 and to expire today.

8. The formal orders which I make in allowing this appeal are these. Under s 20(2) of the Crimes (Appeal and Review) Act2001, I determine these appeals against sentence by setting aside the sentences. Instead of the sentences imposed by the Magistrate, I would impose an aggregate sentence of 18 months. The aggregate sentence commenced on 20 January 2015 and will expire on 18 July 2016. I fix a non-parole period of nine months and nine days commencing 20 January 2015 and expiring today, 28 October 2015.

9. Under s 50 of the Crimes (Sentencing Procedure) Act1999, I make an order directing the release of Mr Howard on parole today. The parole is subject to these conditions –

1. That he be released into the care of Ms Laura Pope today;

2. That he proceed directly from the correctional centre today to Benelong's Haven Rehabilitation Centre at 2054 South West Rocks Road, Kinchela;

3. That he admit himself to that rehabilitation centre and remain at that centre for the duration of any program for which he is accepted. In addition, he must accept all reasonable recommendations and directions by staff at that centre.

4. If he is released from that centre at the end of the program but before the expiry of his parole period, he is to accept supervision from Community Corrections and comply with all reasonable recommendations and directions from officers of that service, particularly concerning relapse prevention interventions upon completion of rehabilitation and personal development.

5. Within five working days of release from Benelong's Haven, Mr Howard is to contact the Community Corrections Service at Kempsey.

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Decision last updated: 13 January 2016