R v Attard

[2000] NSWCCA 299

CITATION:	R v Attard [2000] NSWCCA 299
FILE NUMBER(S):	CCA 60854/99
HEARING DATE(S):	28 July 2000
JUDGMENT DATE:	11 August 2000
PARTIES :	Regina v Troy Reginald Anthony Attard
JUDGMENT OF:	Smart AJ at 1

LOWER COURT JURISDICTION:	Drug Court
LOWER COURT FILE NUMBER(S) :	99/0197
LOWER COURT JUDICIAL OFFICER :	Milson ADCJ

COUNSEL :	R. J. Button (Appellant) R. D. Cogswell S.C. (Crown)
SOLICITORS:	T. A. Murphy (Appellant) S. E. O'Connor (Crown)
CATCHWORDS:	Sentence Appeal from Drug Court - Final Sentence did not take special circumstances into account including accumulation of sentence. Post sentence events and rehearing
LEGISLATION CITED:	Criminal Appeal Act 1912 Drug Court Act 1998
CASES CITED:	R v McCrea (CCA, unreported, 11 August 2000)
DECISION:	Refer paragraph 14

IN THE COURT OF

CRIMINAL APPEAL

60854/99

SMART AJ

Friday, 11 August 2000

REGINA v REGINALD ANTONY TROY ATTARD

1   SMART AJ: Pursuant to s. 5 AF of the Criminal Appeal Act 1912 the appellant appeals to the Court of Criminal Appeal against sentences imposed upon him by the Drug Court pursuant to Drug Court Act 1998: In Regina v. McCrea delivered today I have summarised the relevant statutory provisions of the Drug Court Act 1998 and the Criminal Appeal Act 1912. 2 This appeal is by way of rehearing on the evidence given in the Drug Court and any additional evidence given in this Court pursuant to leave granted by it. I will not repeat what I said in McCrea about the phrase "special grounds". 3 The appellant came before Judge Milson of the Drug Court on 14 July 1999 in respect of three series of offences committed respectively on 16 April 1999, 3 June 1999 and 3 July 1999. On that day the Drug Court imposed suspended sentences pursuant to s. 7(2)of the Drug Court Act 1998 and the appellant was admitted into a Drug Court program. 4 On 24 November 1999 the appellant committed a further series of offences. His Drug Court program was terminated. On 16 December 1999 the appellant appeared before Judge Milson for final sentencing. Judge Milson revoked the previous sentences which had been imposed and suspended. 5 Judge Milson summarised the various series of offences as follows:

(a) 16 April 1999 - the appellant was in possession of a foil of heroin and was using heroin. He was driving a motor vehicle after his licence had been cancelled; he took and drove a motor vehicle without the consent of the owner; he was in possession of implements for stealing a motor vehicle and he had goods in custody. He was found unconscious in a motor vehicle and had drugs with him at the time.

(b) 3 June 1999 - he was involved in the theft of a motor vehicle and was very much affected by drugs.

(c) 3 July 1999 - he entered a building at Bankstown airport and stole keys and a wallet. He used the keys to steal a motor vehicle.

(d) 24 November 1999 - taking and driving a motor vehicle and attempting to take and drive a motor vehicle.

6   The judge took into account that the appellant had shown no inclination to play his part in rehabilitating himself and overcoming his addiction to drugs. The sentence imposed was to act as a deterrent to him and others including those on a Drug Court program who failed to take the opportunity of being free from prison. The judge noted that the sentences imposed were the first ones of full time imprisonment for the appellant, his relative youth and his disadvantaged upbringing including having a father and an uncle who used heroin. 7   In respect of the offences committed on 16 April 1999, 3 June 1999 and 3 July 1999 the appellant received a total of 5 months imprisonment starting on 24 November 1999 and ending on 23 April 2000. The sentences were concurrent. 8   In respect of the offence of 24 November 1999 of taking and driving a motor vehicle the appellant was sentenced to 7 months imprisonment commencing on 24 April 2000 and expiring on 23 November 2000. The Court directed that thereafter the appellant be released on parole for a period of 3 months commencing from 24 November 2000. The offences amounted to a serious episode of criminality meriting substantial punishment and a custodial sentence. 9   Judge Milson stated "In effect he has now a sentence which is a minimum term of 12 months and a conditional (sic) (?additional) term of 3 months on parole". In his reasons Judge Milson did not appear to have regard to whether special circumstances existed including the accumulation of sentences and whether a longer than usual additional term was required. 10   The overall effect of what the judge did was to depart from the usual ratio between the minimum and additional terms without giving any explanation as to why he had done so. 11   Although, the appellant had had previous matters many of which involved driving offences he had not previously been sent to gaol. The appellant was born on 22 September 1976 and was 23 years of age when the judge dealt with him. Because the judge did not advert to the question of special circumstances or the effect of the accumulation of the sentences and had departed from the usual ratio between the minimum and additional terms, I took the view that error had been demonstrated and that it was appropriate for this Court to resentence in accordance with the usual principles and to receive evidence on such resentencing. 12   The appellant’s affidavit discloses that the appellant has been moved many times while in gaol with the result that he has experienced difficulty in completing courses and receiving necessary treatment. He was assaulted by other inmates while at Cessnock Correctional Centre and since then he has been on protection. He was recently assaulted again by inmates. At the time the appellant was sentenced there was no suggestion that he would have to spend his time in gaol on protection. 13   Special circumstances exist. These include the youth of the appellant, no prior full time custodial sentence and the accumulation of the sentences. It is apparent that the appellant will need extended supervision upon his release from gaol in an effort to combat his drug difficulties. At the conclusion of the hearing on 28 July 2000 I was of the view that the sentences imposed should be varied so that overall there should be a sentence of imprisonment for 15 months with a non parole period of 10 months with the appellant being released on parole at the expiration of 10 months. 14   Accordingly I made these orders:

(a) Appeal dismissed on counts 1 to 14 (both inclusive) and count 16;

(b) On count 15 (take and drive motor vehicle - 24/11/99) appeal allowed; sentence quashed;

(c) In lieu of the sentence imposed on count 15 the appellant is sentenced to imprisonment for 10 months with a non parole period of 5 months; the sentence to commence on 24 April 2000;

(d) The appellant is to be released on parole on 23 September 2000. It is a condition of his release on parole that the appellant accept the supervision of the Probation Service and comply with their reasonable directions, particularly those relating to treatment for his drug dependency.

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