Jason Kumar v Regina
[2007] NSWCCA 352
•18 December 2007
New South Wales
Court of Criminal Appeal
CITATION: Jason Kumar v Regina [2007] NSWCCA 352 HEARING DATE(S): 5 December 2007
JUDGMENT DATE:
18 December 2007JUDGMENT OF: Basten JA at 1; Hidden J at 2; Barr J at 3 DECISION: Leave to appeal against sentence refused. PARTIES: Jason Kumar
ReginaFILE NUMBER(S): CCA 2006/5137 COUNSEL: M Hobart SC
A FrancisSOLICITORS: S Kavanagh
C WilliamsLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/21/2058 LOWER COURT JUDICIAL OFFICER: Bennett DCJ
2006/5137
18 DECEMBER 2007BASTEN JA
HIDDEN J
BARR J
1 BASTEN JA: I agree with Barr J.
2 HIDDEN J: I agree with Barr J.
3 BARR J: Jason Kumar has applied for leave to appeal against a sentence imposed in the District Court. He pleaded guilty to one count of stealing from the person, contrary to s94 Crimes Act. The maximum sentence is fourteen years’ imprisonment. He was sentenced to imprisonment for three years, commencing on 16 April 2006 and expiring on 15 April 2009. The sentencing judge ordered that he be released to parole at the expiry of the non-parole period on 15 April 2008, less than four months from now.
4 The facts were described as follows in a statement tendered by consent to the sentencing judge -
On 2 May 2005 shortly after 6 pm Mr Kenneth Pitson was standing in Patrick Street, Blacktown in the vicinity of the railway station and taxi rank adjacent to it. The offender ' s co-offender, Michael Hanna, approached Mr Pitson and introduced himself as Max. He engaged Mr Pitson in conversation and then asked if he could borrow Mr Pitson's phone. This took place near a phone booth at that location. At first Mr Pitson was reluctant to lend the phone but soon agreed. Hanna took Mr Pitson's SIM card from the phone and inserted his own. He used the telephone at a point proximate to the telephone booth but then began to walk away continuing to use Mr Pitson's phone as he did so. Mr Pitson followed and as they approached a 7Eleven store nearby Hanna introduced Mr Pitson to this offender whom he had identified as Owen. This offender was standing with a group of other males at that time.
Hanna continued to walk past this offender and the group of males with whom he was standing, and this offender followed, as did Mr Pitson. With Hanna leading the way they walked into a laneway a little distance into which Hanna stopped. Mr Pitson sought the return of his telephone. This offender stopped and was standing near to Pitson and said "Give me your fucking money". Mr Pitson gave a brief response and Hanna repeated this demand. Mr Pitson was concerned about the presence of both of these offenders and the location, in which they were standing and surrendered his wallet. Hanna took the wallet and took Mr Pitson's driver's licence and a $50 note. Hanna then read Mr Pitson's details aloud whilst using the telephone and then returned the licence to Mr Pitson. The purpose for him having done so has not been made clear in the course of these proceedings.
When Hanna handed the licence back to Mr Pitson he walked a short distance away before running to a nearby restaurant where he summoned the police. They attended and with them he drove around the area looking for these offenders. This was not successful. On 7 June 2005 Mr Pitson was in the foyer of the Mt Druitt Police Station, this was a little over a month after the offence on 2 May 2005. Whilst he was there this offender, Jason Kumar, walked into the police station and was recognised immediately as the person Owen involved in this offence. Mr Pitson brought this to the attention of the police in the station, they spoke with Kumar and after confirming his identity referred those particulars to the police at Blacktown where the offence was committed. Mr Kumar was arrested on 9 August 2005. He took part in an interview in which he denied any involvement in this offence. The investigation by the police established that the offender Hanna used the telephone stolen from Mr Pitson a total of thirty-six times on 2 May and 3 May 2005.
5 The co-offender, Hanna, also pleaded guilty. He also was sentenced to imprisonment for three years with a non-parole period of two years.
6 The first ground of appeal is that the applicant has a justifiable sense of grievance by comparing his sentence with that imposed upon Hanna. It was submitted that Hanna had a significantly more serious criminal record, had previously served lengthy custodial terms for violent matters of a similar kind, was on parole at the time of the offence and had significant episodes of misconduct in custody.
7 The one judge sentenced both offenders. It was apparent to his Honour that the objective seriousness of their respective offences was about the same. Subjectively, both offenders were twenty-three, both had come from difficult family circumstances and both had a substantial prior criminal history, including sentences of imprisonment. Hanna offended while on parole; the applicant offended while on bail. Both had a serious problem with the use of illegal drugs and had tried unsuccessfully to rid themselves of their addictions. Both had substantial family support.
8 Hanna had the longer criminal record. He had begun offending when he was a teenager and had a number of appearances in the Children’s Court. More recently, he had been sentenced a number of times in the Local Court and had spent altogether about three and a half years in custody. Up to 16 December 2003 he had seriously misbehaved himself in custody and had clocked up twenty-two reports for breaches of discipline. They included general acts of disobedience and, more significantly, failing to supply urine samples and failing urine tests. Over the years he had come under the supervision of officers of the Probation and Parole Service. While he had maintained contact with that Service, his overall response to the directions if its officers had been considered unsatisfactory because of his use of illegal drugs and his repetition of crime.
9 By the time Hanna came before his Honour, however, things were changing. The Probation and Parole Service was taking a more positive view of him and considered him suitable for medium level intervention by that Service. Hanna had undertaken courses at TAFE including an introductory course for admission to apprenticeship as an electrician. He had been offered a start as an apprentice. He had accepted the position, but the possession of amphetamines, for which he was charged on 9 December 2005, and his commission of the present offence, had lost him the opportunity. Hanna gave evidence before his Honour. His Honour was impressed with Hanna’s attitude and accepted his intention to try to rid himself of drugs, under the supervision of the Probation and Parole Service, and to get into the apprenticeship course he had in mind.
10 The applicant, too, had started his criminal career in the Children’s Court. He was first dealt with in the Local Court in February 2001 and from then on and off until February 2006, for offences related to his drug habit, principally theft and the like. He had spent a number of periods of time in custody, but amounting to much less than Hanna. Like Hanna he had misbehaved himself and had had reports for breaches of discipline, but like Hanna he was showing signs of coming to terms with things and trying to rid himself of his dependence on illegal drugs and the consequent need to offend.
11 While it is correct to say, as was submitted, that Hanna’s record was worse and that he had served lengthy custodial terms, that he was on parole at the time of the offence and that he had significant episodes of misconduct in custody, the overwhelming impression one receives from reading the remarks on sentence is that the sentencing judge was in each case impressed with the way the offender was at last trying to put things behind him and with the support offered, particularly from family and from the Probation and Parole Service.
12 In the circumstances it is not surprising that the judge imposed the same sentence on each offender.
13 The first ground of appeal has not been made good.
14 The second ground of appeal asserts that the accumulation of sentences does not give effect to the sentencing judge’s finding of special circumstances.
15 A rather complicated series of events had taken place before sentence. The applicant had been convicted of another matter in the Local Court and had been sentenced to a period of imprisonment. He had lodged an appeal and had later withdrawn that appeal. It appeared to the sentencing judge in the present matter that the applicant had spent a period of time in custody on account of this matter alone but other periods of time on two unrelated matters, for which he had been sentenced in February and April 2006. When the subject of pre-sentence custody was raised, his Honour remarked, referring, I think, to the topic of accumulation, that he would have no difficulty finding special circumstances to justify the variation of the statutory ratio required by s44 Crimes (Sentencing Procedure) Act. The sentence now under attack comprised a non-parole period of two years and a parole period of one year. When it was accumulated upon the non-parole periods for the existing sentences, the resulting aggregate non-parole period amounted to seventy-three per cent of the total period.
16 It is well established that the accumulation of sentences can amount to special circumstances for the purposes of s44. See, for example, R v Simpson (1992) 61 A Crim R 58. Indeed, when a number of sentences are accumulated it is often necessary to adjust the components of at least the last of them if any realistic parole period is to result. There is no rule, however, that, when accumulating, a sentencing judge must always vary the relationship between non-parole and parole periods of the sentence that begins last: R v Cook [1999] NSWCCA 234.
17 Ms Francis, for the applicant, relied on R v Bolamatu [2002] NSWCCA 454, in which Wood CJ at CL said –
- The effect of his Honour’s sentencing order which, in substance, discounted the statutory ratio by only four per cent, and when considered against the total period of continuous custody, in my view, did not properly carry into effect the finding of special circumstances.
18 I do not think that the remarks of Wood CJ at CL assist the applicant. The facts of Bolamatu were different and his Honour was not attempting to lay down any statement of principle. What appears in the present case is that his Honour acknowledged at an early stage that there would be a need on account of accumulation to vary the proportions in the sentence he would impose. In due course he identified a further reason to vary the proportions, namely the prospects of rehabilitation and the need to facilitate the process of rehabilitation. It seems to me that his Honour achieved what he set out to achieve. The result is a proper sentence, the total length of which is not criticised, which incorporates what appears to be an adequate time for the applicant to make the best of his prospects of rehabilitation under supervision on parole.
19 I would refuse leave to appeal against the sentence.
0
3
0