Pattiapon v The Queen

[2018] NSWCCA 8

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Pattiapon v R [2018] NSWCCA 8

Hearing dates:

30 January 2018

Decision date:

09 February 2018

Before:

Simpson JA at [1];
R A Hulme J at [2];
Hidden AJ at [48]

Decision:

1. Time for filing Notice of Application for Leave to Appeal extended to 13 November 2017.
2. Leave to appeal against sentence refused.

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – drug offences – prohibited weapons offences – Drugs Misuse and Trafficking Act 1985 (NSW) s 25(1) – Weapons Prohibition Act 1998 (NSW) s 7(1)

 

CRIMINAL LAW – application for leave to appeal against sentence – whether trial judge failed to make an assessment of the applicant possibly suffering from mental illness – whether trial judge erred by not giving regard to applicant’s sexual orientation and nationality – whether trial judge erred by not adequately having regard to prospects of drug and alcohol rehabilitation – whether judge erred by failing to foresee that the Department of Correctional Services would breach its duty of care – whether sentence manifestly excessive

CRIMINAL PROCEDURE – sentence – breach of good behaviour bond – District Court Judge revoked bond – Crimes (Sentencing Procedure) Act 1999 (NSW) ss 98-99

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5(1), 12, 98
Drugs Misuse and Trafficking Act 1985 (NSW) s 25(1)
Weapons Prohibition Act 1998 (NSW) s 7(1)

Category:

Principal judgment

Parties:

Rooy Pattiapon (Applicant)
Regina (Crown)

Representation:

Counsel:
Applicant in person
Mr B Hatfield (Crown)

  Solicitors:
Solicitor for Public Prosecutions

File Number(s):

2015/88384

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

12 July 2016

Before:

Delaney ADCJ

File Number(s):

2015/88384

Judgment

1. SIMPSON JA: I agree with R A Hulme J.

2. R A HULME J: On 12 July 2016 Mr Rooy Pattiapon ("the applicant") was sentenced by his Honour Acting Judge Delaney in the District Court at Parramatta in respect of two offences to two terms of imprisonment, the execution of which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

3. For an offence of supplying 9.76 grams of methylamphetamine the applicant was sentenced to a suspended term of imprisonment for 12 months. This is an offence contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) for which the maximum penalty is imprisonment for 15 years and/or a fine of $220,000.

4. For an offence of possessing a prohibited weapon without being authorised to do so by a permit the applicant was sentenced to a suspended term of imprisonment for 22 months. This offence is contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) for which the maximum penalty is imprisonment for 14 years. There is also prescribed in respect of this offence a standard non-parole period of 3 years under the Crimes (Sentencing Procedure) Act.

5. In sentencing for the drug supply offence, Delaney ADCJ took into account at the applicant's request four offences of possessing prohibited drugs and two offences of possessing prescribed restricted substances.

6. In sentencing for the prohibited weapon offence, his Honour took into account at the applicant's request an offence of having custody of a knife (in fact five knives) in a public place.

7. Delaney ADCJ was satisfied that no penalty other than imprisonment was appropriate: s 5(1) of the Crimes (Sentencing Procedure) Act. However, his Honour was persuaded that execution of the sentences should be suspended upon the applicant entering a good behaviour bond. He specified that the bonds be subject to conditions that the applicant:

• Accept the supervision and guidance of the Community Corrections Service and comply with all reasonable directions for the term of the bond.

• Participate in alcohol addiction counselling as directed.

• Participate in drug addiction counselling as directed.

Breach of the s 12 bonds and call-up proceedings

8. The applicant's compliance with the conditions of the bonds was poor. He frequently failed to attend appointments with his supervising officer; he continued using drugs; and he failed to engage with a drug treatment program as directed. A breach report dated 8 November 2016 was forwarded to the District Court and a judge directed that the applicant be called up.

9. The call-up proceedings came before a number of judges on 30 November 2016 and thereafter. It was made clear from the outset that the applicant admitted the breaches asserted in the breach report. Ultimately the matter came before her Honour Judge Syme on 1 March 2017.

10. On behalf of the applicant it was accepted that the appropriate course of action for the judge to take was to revoke the s 12 good behaviour bonds, thereby activating the sentences of imprisonment previously suspended. It was urged that her Honour should make a finding of special circumstances and reduce the non-parole component of the sentence in the same fashion as Delaney ADCJ had indicated he would have done if he had not agreed to suspend the execution of the sentences.

11. Her Honour agreed with what was put on the applicant's behalf. Accordingly, the sentences imposed became as follows:

Supply prohibited drug: a fixed term of imprisonment for 12 months.

Possess prohibited weapon: imprisonment with a non-parole period of 12 months and a balance of term of 10 months.

12. Taking into account the day the applicant was in custody following his arrest and before being released on bail, her Honour ordered that both sentences commence on 28 February 2017. Accordingly, the applicant is due to be released on parole following the expiry of the non-parole period for the prohibited weapon offence (and the entire sentence for the drug supply offence) on 27 February 2018.

The applicant's personal circumstances

13. At the time of the offences in March 2015 the applicant was aged 45 and had no previous convictions. He was born in 1970 in Indonesia. He came to Australia in 1998, leaving all of his family in Indonesia. A Pre-Sentence Report included that he did not appear to have any family support and that he had become estranged from his mother due to a family rift in 2012 concerning some financial matter.

14. The applicant completed a diploma in fisheries management at a university in Tasmania. Thereafter he worked in that field for a time and then for some years in finance. He worked for six years with a health insurance company until the end of 2013 when he accepted a redundancy package.

15. The applicant commenced using drugs in 2012 or 2013, initially what were described as "party drugs" but progressing to the regular use of methamphetamine. The author of the Pre-Sentence Report asked him why he starting using drugs (at the age of 42-43) and he blamed his mother and the family rift. He gave drug use as a reason for ending his employment at the end of 2013. A report by a psychologist, Mr Nicholas Doumani, dated 11 May 2015 included that the termination of a 12-year relationship in 2014 was also a result of his drug use.

16. The applicant had been seeing the psychologist, Mr Doumani, at the Taylor Square Private Clinic from 2013 until he travelled to Thailand to enter a rehabilitation clinic in 2014. An invoice from The Cabin Chiang Mai for a 28 day treatment program was tendered in the proceedings before Delaney ADCJ.

17. The applicant told the author of the Pre-Sentence Report that he remained in the treatment program until he returned to Australia in March 2015.

Facts of the offences

18. Just after midnight on 24 March 2015, police patrolling the Surry Hills area came across the applicant in circumstances that excited their interest. As a result of his demeanour they determined to carry out a search. They found the following items which gave rise to the various offences for which the applicant was sentenced or which were taken into account:

9.76 grams of methylamphetamine

12.1 grams of gamma butyrolactone

Two oxycodone tablets

0.07 grams of 5-methoxy-N,N-dialyltryptamine

Five tablets and some powder of sildenafil

0.34 grams of ketamine

Three small bottles of isobuyl nitrite

A conducted electrical weapon disguised as a torch with the word "Police" down one side

Five knives (two Leatherman knives, a Swiss army knife, a Stanley knife and a kitchen knife)

19. Police also found a set of small electronic scales, empty resealable plastic bags, parts of a syringe and foils.

Proceedings on sentence before Delaney ADCJ

20. Aside from the tender of documents referred to earlier there was no other documentary or oral evidence in the applicant's case before Delaney ADCJ. Submissions by counsel acknowledged the seriousness of the offences but focussed upon persuading his Honour that sentences of imprisonment should be suspended. He referred to the applicant's previous unblemished record and his drug addiction, his battle to deal with it and associated issues.

21. Counsel submitted that the applicant was:

“a person that I think could respond well to counselling and therapy if he could - he’s certainly one that certainly understands what’s happening in Court. There’s no disability that I can refer to. He’s a person who’s just had his ordinary moral compass compromised by addiction to drugs.” (Emphasis added.)

22. The judge found that both the drug supply and the prohibited weapon offences were "at the lower end of criminal offending".

23. His Honour accepted that the applicant was of excellent prior character; he was remorseful; he was capable of rehabilitation; and that he was unlikely to reoffend if he continued with efforts to address his addiction. (As to the weapon, counsel had submitted that there was “a sexual aspect to that”, but he did not elaborate.)

24. The judge allowed a reduction of sentence of 25 per cent for the utilitarian value of the applicant's early pleas of guilty.

25. Although it was not a requirement to set a non-parole period in imposing a suspended sentence of imprisonment, the judge indicated that he regarded a non-parole period of 12 months as appropriate against the head sentence of 22 months for the prohibited weapon offence.

Application for leave to appeal against sentence

26. The applicant filed a Notice of Application for Leave to Appeal and an Application for Extension of Time on 13 November 2017; a notice of intention to appeal previously filed having lapsed. Part of the explanation for the delay relates to an asserted state of anxiety and depression and part relates to an application for legal aid. In the circumstances it is appropriate that the extension of time be granted.

27. Before turning to the four proposed grounds of appeal it is appropriate to say something about the procedure that applied in the District Court following the submission of the report asserting that the applicant had not complied with conditions of the s 12 good behaviour bonds.

28. Section 98 of the Crimes (Sentencing Procedure) Act provides for the procedure if there is an asserted breach of a good behaviour bond and s 99 provides for the consequences if a court revokes the bond. Sub-s (3) of s 98 provides:

"(3) In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied:

(a) that the offender’s failure to comply with the conditions of the bond was trivial in nature, or

(b) that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond."

29. In the present case there was no suggestion that the applicant's failure to comply with the conditions of the bond was trivial or that there were good reasons for excusing such failure. It was readily accepted that the District Court "must revoke the bond".

30. Relevant provisions of s 99 are:

"99 Consequences of revocation of good behaviour bond

(1) If a court revokes a good behaviour bond:

…

(c) in the case of a bond referred to in section 12:

(i) the order under section 12 (1) (a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and

(ii) Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part. …

(2) Subject to Parts 5 and 6, a court may, on revoking a good behaviour bond referred to in section 12, make an order directing that the sentence of imprisonment to which the bond relates is to be served by way of an intensive correction order or home detention.

....

(4) This Act applies to the sentencing or re-sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction.

(5) An offender who under this section is sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence."

31. The practical effect of these provisions, relevant to the present case, were that:

1. The order made by Delaney ADCJ suspending execution of the sentences of imprisonment ceased to have effect. In other words, the sentences were activated.

2. The provisions of Pt 4 of the Act applied. These included the requirement to set a non-parole period which entailed a consideration of whether there were special circumstances warranting it being less than three-quarters of the head sentence. (This is a finding that was urged upon Syme DCJ and which she accepted.) It was also necessary to have regard to matters referred to in s 24 which included any time the applicant had spent in custody for the offence (1 day following his arrest); the fact that he had been the subject of a good behaviour bond; and anything he had done to comply with his obligations under such bond (in this case, very little).

3. Syme DCJ had discretion as to whether to order that the terms of imprisonment be served by way of an intensive correction order. (Home detention was not available because the sentence for the prohibited weapon offence exceeded that which rendered home detention available.) However, no submission was made that her Honour ought to exercise this discretion.

4. The applicant had the same right of appeal in respect of the outcome of the breach proceedings before Syme DCJ as he had in respect of the initial sentence proceedings before Delaney ADCJ.

Ground 1: The sentencing court failed to adequately assess my status of mental illness, the exposure to factors that could worsen my mental illness status, and the sentencing court accordingly denied me fundamental natural justice.

32. In his written submissions in support of this ground the applicant referred to having a history of drug and alcohol dependence since 2012 which he said had the effect of limiting his awareness of his actions. He characterised this as a history of mental illness and submitted that it was not factored into his sentencing. Reference was also made to events post-sentencing: being assaulted by other inmates on 2 June 2017 and a psychiatric assessment on 6 September 2017 that he was suffering from Post-Traumatic Stress Disorder.

33. There was no evidence before either Delaney ADCJ or Syme DCJ that the applicant had, or might develop, a mental illness. Experienced counsel who appeared in the original proceedings told his Honour that "there's no disability that I can refer to". The primary focus was upon the evidence of the applicant's drug addiction.

34. In the pre-sentence report that was before Delaney ADCJ, the applicant mentioned a history of depression in recent years. There was no reference to depression in the report by the psychologist Mr Doumani. The applicant told the author of the Pre-Sentence Report that he had attended another psychologist more recently, who was contacted and confirmed that the applicant had only attended twice; on 28 January and 18 February 2016.

35. With only a scant history of depression provided to the Community Corrections Officer and no evidence to support it from any expert, neither Syme DCJ nor Delaney ADCJ denied procedural fairness or fundamental natural justice by failing to make any assessment of the applicant suffering, or possibly developing, a mental illness.

36. There is no principled basis for the post-sentencing events referred to in the applicant's submissions to be considered by this Court as they are incapable of establishing that the sentence proceedings miscarried in some fashion.

Ground 2: The sentencing court made a specific error of law by denying me access to fundamental human rights, based upon my inherent vulnerability due to my sexual orientation (ie: I am gay/homosexual) and my racial background (ie: I am an Indonesian national). Furthermore I have been the subject of bullying, harassment and a vicious physical assault, all of which were foreseeable.

37. The applicant claimed in his written submissions that he had been "subjected to a fundamental campaign of harassment, abuse and violence whilst inside the NSW jail system" because he is "a gay man and of Indonesian background".

38. No issue was raised in the sentence proceedings, or in the breach proceedings, of the applicant being vulnerable in the custodial environment due to his sexual orientation or racial background and the same was not self-evident such that the judges could be expected to have taken it into account. Accordingly, no error in the sentencing process is established in this respect.

Ground 3: The sentencing court did not properly assess my rehabilitation and recovery prospects and this did not adequately discount my sentence, leading to a manifestly excessive sentence of 12 months (non-parole period).

39. The applicant argued that he had taken steps while in custody to address his substance abuse problem by participating in weekly Narcotics Anonymous meetings. He had also worked to assist other prisoners to address their drug and alcohol addictions. He submitted that his sentence should be reduced for these reasons.

40. I have referred to Delaney ADCJ making findings that the applicant was remorseful; that he was capable of rehabilitation; and that he was unlikely to reoffend if he complied with treatment to address his drug addiction. His Honour did not say why he would make a finding of special circumstances and reduce the non-parole component of the sentence if he were not suspending its execution but it seems most likely he had in mind that a longer period of parole supervision would assist the applicant with his rehabilitation.

41. Syme DCJ accepted that she should adopt the same approach and reduced the non-parole period as Delaney ADCJ indicated he would have. She was not asked to do any more than that. In fact, it was exceedingly generous of her Honour to accede to the request.

42. The applicant's case before Delaney ADCJ was one of hope and promise that he would engage in rehabilitation. However, he responded to the leniency extended to him by failing to attend his first three appointments with his supervising officer. When he attended the fourth appointment on 16 August 2016 he admitted to daily use of methamphetamine. On that occasion he was directed to the St Vincent's Treatment Program.

43. There followed a series of further missed appointments with the supervising officer. In October 2016 the officer made an inquiry with the St Vincent's Treatment Program to discover that the applicant had attended on only one occasion. The officer then recommended in her report of 8 November 2016 that the s 12 suspended sentence order be revoked because of the applicant's poor attitude, resistance to change and poor response to supervision.

44. In these circumstances, if Syme DCJ had properly assessed the applicant's "rehabilitation and recovery prospects" it would likely have led to her imposing a longer rather than shorter non-parole period. There is no merit in the complaint that the non-parole period of 12 months (55 per cent of the head sentence) is manifestly excessive.

39. Accepting the correctness of the assertions in the applicant's written submissions as to the rehabilitative steps he has taken whilst in custody, whilst they are commendable, they are not matters that bear upon the integrity of the sentencing process and there is no basis for this Court to intervene and further reduce the non-parole period.

Ground 4: The sentencing court failed to foresee that the Department of Correctional Services would breach its fundamental duty of care to me, Rooy Pattiapon, leading to me being assaulted, then held responsible for the assault, at Glen Innes Correctional Centre on 2nd June 2017 and as a result of that, my classification got downgraded from C2 to B2 and sent to Grafton maximum security remand centre.

46. Again, events occurring since sentencing are only available to be taken into account in this Court in very limited circumstances given that this Court's jurisdiction is largely concerned with the integrity of the proceedings in the Court below. No basis is shown for how the sentencing court was supposed to foresee, and therefore take into account, the event the subject of complaint under this ground.

Conclusion and orders

47. There is no merit in any of the proposed grounds of appeal. In these circumstances I propose the following order:

1.   Time for filing Notice of Application for Leave to Appeal extended to 13 November 2017.

2.   Leave to appeal against sentence refused.

48. HIDDEN AJ: I agree with R A Hulme J.

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Decision last updated: 09 February 2018