R v Dane Erceg

[2018] NSWDC 121

District Court

New South Wales

Medium Neutral Citation:	R v Dane Erceg [2018] NSWDC 121
Hearing dates:	4 May 2018
Decision date:	11 May 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence imposed. For orders see [100]
Catchwords:	Supply prohibited drugs; receive stolen property; escape police custody; aggregate sentence; special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Berryman v R [2017] NSWCCA 297 JM v R [2014] NSWCCA 297 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Van Ryn [2016] NSWCCA 1 Veen v R [No. 2] (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Dane Erceg (Offender)
Representation:	Counsel: Ms K McKenzie (Crown) M Swift (Offender)
File Number(s):	15/125752, 17/102209, 17/249005
Publication restriction:	Nil

REMARKS ON SENTENCE

Introduction

1. The offender is to be sentenced in respect of the following three offences:

1. H58689478 - escape police custody

This is a common law offence for which there is no maximum penalty proscribed, however, if dealt with summarily, the maximum penalty is 2 years imprisonment and/or 100 penalty units. There is no Standard Non-Parole Period for the offence.

2. H58689478/OCI 1008 - receive property – theft – serious indictable offence greater than $5000.

This is an offence pursuant to section 188 of the Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment and there is no Standard Non-Parole period for the offence.

3. H63896045/1 - supply prohibited drugs greater than indictable quantity (27.75g methylamphetamine) pursuant to section 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

The maximum penalty for this offence is 15 years imprisonment and/or 2000 penalty units. There is no Standard Non-Parole Period for this offence.

2. The offender has asked that in respect of the offence of escape police custody, a further matter be taken into account on a Form 1, namely:

Sequence H58689478/3 - resist officer in execution of duty pursuant to section 58 of the Crimes Act 1900.

3. The following backup offences have been set out in a certificate pursuant to section 166 of the Criminal Procedure Act 1986:

Enter dwelling with intent to commit larceny (sequence 6)

Larceny (sequence 7)

4. These backup offences are to be dismissed upon sentence.

5. A further related offence is also contained in the S 166 Certificate:

Goods in custody suspected stolen in premises or motor vehicle (sequence 4)

6. The offender is also to be dealt with in respect of this offence.

7. The first two offences set out above (escape police custody and receive property), occurred on 6 March 2015. The offender was arrested in respect of those offences on 13 March 2015.

8. The third offence occurred on 28 December 2016 (supply prohibited drug). The offender was arrested on 5 April 2017 in respect of that matter.

9. The offender was in custody on remand from 13 May 2015 to 11 September 2015, when he was granted Supreme Court bail. He re-entered custody on 5 April 2017 following his arrest in respect of the offence of supply prohibited drug and has been in custody on remand since that date. However, on 5 March 2018, the offender was sentenced in the Local Court for an offence of larceny pursuant to section 117 of the Crimes Act 1900, which occurred on 17 December 2016, to a term of imprisonment of 8 months with a non-parole period of 6 months to commence on 6 March 2018. Therefore, in respect of the subject offences for which he is being sentenced, the offender has spent 455 days in custody (1 year, 2 months, 4 weeks and 1 day) in two periods of time, namely 13 May 2015 to 11 September 2015, and between 5 April 2017 and 5 March 2018.

10. Listed with the sentence matters referred to above, was a Severity Appeal brought by the offender in respect of the larceny offence referred to above.

11. The first two offences referred to above were committed whilst the offender was subject to a number of bonds (being eight in total), imposed on 24 November 2014 pursuant to s 9 and s 12 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). For the sake of completeness, at the request of the offender, I have directed that those matters be called up before me to be dealt with at the same time that I sentence the offender in respect of the subject offences.

The sentence hearing

12. The sentence hearing took place on 4 May 2018. The Crown Sentence Summary became Ex A. It included a Statement of Agreed Facts which may be summarised as follows. On the evening of 6 March 2015, a co-offender, Tran Phan, broke into premises at Bondi Road, Bondi and stole a Samsung 35 inch television, an Apple 13.5 inch MacBook Pro with charger, an Apple 15 inch MacBook Pro with charger, an iphone charger and a black laptop bag. Later that evening, the offender and Phan were observed together outside premises at Birriga Road, Bellevue Hill, where the offender resided at that time. They were approached by police who found the items listed above in the back of Phan’s vehicle, in which both the offender and Phan had been observed to arrive at the premises in. It is on that basis that the offender was charged with, and pleaded guilty to, receiving stolen property.

13. The offender was told by police that he was under arrest and that they intended to search his vehicle which was also parked outside the premises. The offender refused to give police the keys to the car and began walking backwards away from the police officers. Senior Constable Winter took hold of the offender's arm and the offender pulled his arm away. This conduct constitutes the offence on the Form 1 of resist officer in the execution of his duty.

14. The offender then ran into the house premises in Birriga Road and police unsuccessfully attempted to locate him in surrounding properties. He was arrested on 13 May 2015 during a vehicle stop.

15. On 28 December 2016, police observed a vehicle in which the offender was travelling as a passenger, driving along Birriga Road, Bellevue Hill, at faster than the designated speed limit. The vehicle was pulled over and the offender exited from the car and ran from the police. He ignored a police direction to stop, and police chased him. The driver of the vehicle confirmed that the offender was the passenger in the vehicle.

16. During the chase, Senior Constable Murphy observed the offender ripping apart a plastic bag with both hands and observed a crystalline substance spill from the bag onto the footpath. He also observed the offender to throw two plastic resealable bags containing a crystalline substance onto the footpath.

17. The offender evaded the police by climbing over a fence onto an adjoining property. When doing so, however, he left a backpack and a mobile phone on the ground which contained a number of identifying objects, including the offender's driver’s licence, a Visa debit card in the name of the offender, and a Medicare card in the name of the offender, and Olivia Erceg.

18. The crystalline substance contained in the two plastic resealable bags, the offender was observed to have thrown on the ground, was analysed as containing a total weight of methylamphetamine of 27.75g, with a purity of 78%. A police expert has opined that the potential street value of the prohibited drugs if sold “by the point” is between $12,400 and $36,850. If sold in a single transaction, the value was between $5,000 and $7,500.

19. The offender was arrested on 5 April 2017 and declined to be interviewed by police.

20. Ex A also contained the criminal antecedents of the offender. It was extensive. The offender, who was born on 26th February 1978, is therefore now 40 years of age, was first before the Children's Court at age 14, on a charge of break, enter and steal. Numerous similar offences followed in 1994 and 1995, for which he was sentenced by way of probation and control orders and small fines. As an adult in 1996 he had a number of convictions for offences of violence and dishonesty, and was sentenced to a fixed term of imprisonment in 1997 in respect of two charges of breach of apprehended violence order and malicious damage.

21. In 1998 the offender was sentenced to periodic detention for various periods in respect of offences of violence and dishonesty, and a similar pattern applied throughout 1999.

22. In 2003 the offender was sentenced in respect of dishonesty offences to terms of imprisonment of 9 months, suspended on entering bonds pursuant to s 12 to be of good behaviour. In 2004 he was sentenced in respect of traffic matters to a term of imprisonment of 4 months, again suspended, pursuant to s 12 of the CSPA. Later in 2004 he was sentenced to periodic detention for a period of 12 months for various traffic offences.

23. In 2007 the offender was convicted of a common assault charge, for which he was sentenced by way of a s 9 bond. In 2008 he was sentenced to s 9 bonds in respect of drug and dishonesty offences. In 2010 he was sentenced to a term of imprisonment of 2 years, suspended pursuant to s 12, for an aggravated break, enter and commit serious indictable offence. Later that year, on call up for breach of that bond, he was sentenced to a period of 2 years imprisonment with a non-parole period of 6 months.

24. In December 2010 the offender was sentenced to a term of imprisonment for 9 months on a charge of assault occasioning actual bodily harm, with a non-parole period of 5 months.

25. In 2012 the offender was convicted of possess prohibited drug and fined.

26. On 24 November 2014 the offender was sentenced in respect of the following offences:

Deal with property suspected proceeds of crime - sentenced to 6 months imprisonment, suspended on entering a s 12 bond;

Supply prohibited drug - 12 months imprisonment, suspended on entering s 12 bond;

Resist officer in execution of duty - 12 months s 9 bond;

Resist or hinder police officer in the execution of duty - 12 months s 9 bond;

Supply prohibited drug greater than small and less than an indictable quantity - 15 months imprisonment, suspended pursuant to s 12;

Resist officer in execution of duty - 12 months s 9 bond;

Resist or hinder police officer in the execution of duty – 12 months s 9 bond;

Deal with property suspected proceeds of crime – 9 months imprisonment, suspended pursuant to s 12;

Possession of equipment for administering prohibited drugs - s 10 A conviction with no other penalty.

27. The antecedents also included a conviction on 11 July 2017 for goods suspected of being stolen, for which a s 9 bond was imposed for a period of 12 months. Otherwise, there are numerous traffic offences, including a drive whilst suspended offence in 2004, for which a s 9 bond was imposed for a period of 18 months.

28. Exhibit A also included a Pre-Sentence Report under the hand of Sia Fainuu, dated 19 April 2018. The report outlined that there had been extensive prior management by Community Corrections of the offender. He had been subject to a range of s 9 and s 12 good behaviour bonds, periodic detention and the records noted that he was generally compliant with supervision.

29. Under the heading “Family/Social Circumstances”, the author noted that the offender described an unstable childhood marred by domestic violence by his father towards him and his mother. He had since reconciled with his father and described a positive relationship with his mother, with whom he will likely reside upon his release to the community. The offender was also engaged in a one year relationship with his current partner, with whom he has had one child. He has two elder children by a previous relationship.

30. The offender attained the year 12 Higher School Certificate, a Certificate III in carpentry, and a Certificate IV in fitness and hospitality. He has skills as a carpenter and his uncle has confirmed that he will have a position available for the offender upon his release.

31. The offender reported smoking cannabis socially from age 13. At age 22 he took up methylamphetamine abuse which had escalated. Whilst in custody, he has completed the Remand Addictions Program. Under the heading “Attitude to Offending”, the offender did not dispute the police facts and acknowledged his frequent negative interactions with law enforcement. He recognised that his antisocial behaviour had been directly influenced by his peers. His identified chromogenic needs are:

• Companions;

• Alcohol/drug problems.

32. The author noted that the offender had expressed remorse and presented with a significant level of insight into his offending behaviour. He expressed a desire to be a role model for his newborn child and has the support of pro‑social family members. It was considered that the offender would benefit from a period of supervision by Community Corrections and that case management strategies would include:

• Referral for alcohol and drug assessment and related programs and counselling;

• Monitor associates;

• Finally the offender was assessed as suitable for a community service order.

33. Exhibit B on the sentence hearing was a Crown Sentence Summary in respect of the co-offender, Mr Phan, sentenced on 22 April 2016 on different charges, namely, one charge of break and enter dwelling house, one charge of steal, and two related offences of goods in custody. It was conceded that principles of parity did not apply in respect of the sentencing of that co‑offender.

34. Exhibit C was the Crown Bundle on the Severity Appeal in respect of the offence of larceny, which was committed on 17 December 2016. I refer to this matter, and the evidence in relation to it, below, following my sentence on the subject offences.

The offender's evidence

35. The offender tendered a bundle of documents (Exhibit 1). They included a psychological report from Mr Tim Watson-Munro dated 2 May 2018 (Ex 1.1); an affidavit affirmed by the offender's mother, Debra Hawkins, on 3 May 2018, setting out subjective matters concerning the offender's background (Ex 1.2); a testimonial from the offender's uncle offering him full-time employment upon his release (Ex 1.3); letters of attendance at various courses whilst in custody (Ex 1.4); together with transcripts of the offender’s TAFE records (Ex 1.5).

36. The offender also tendered a bundle evidencing his residential rehabilitation program at Niagara Lodge, together with courses he had attended on remand (Ex 2). A further document from Niagara Lodge setting out details of the residential program became Ex 3, together with a document tendered today, confirming that he had completed a 6 months course, which became Ex 4.

The offender’s oral evidence

37. The offender gave evidence that the significant number of matters for which he had been convicted had arisen essentially from his drug use. He had commenced using cannabis at 13 years of age, and that drug use escalated to using crystal methylamphetamine at age 22. At times he had abstained from prohibited drug use. During the period 2000 to 2004, he had worked at the Westin Hotel in food and beverage and had studied a hospitality management diploma. He had subsequently relapsed. He was again abstinent between 2008 and 2010, during which he studied his fitness Certificate III and IV. During that time, he worked as a carpenter in his uncle's business. He was again abstinent between 2010 and 2012 whilst studying fitness and personal training. In 2015 he had been abstinent whilst working with his father as a carpenter. During that year he had been in custody on remand and spent seven months abstinent. Notwithstanding the opportunity to consume prohibited drugs in jail, he did not succumb.

38. On release to Supreme Court bail, he attended a residential course at Niagara Lodge from September 2015 for a period of six months. He was not allowed to leave the premises for the first month, and thereafter was allowed daily outings, for example to go to the shops. Whilst there, he attended Narcotics Anonymous meetings. In January 2016 he made a bail variation application to allow him to leave the course so as to study at TAFE, and work as a builder with his uncle. He was, however, required to stay in the program for six months.

39. Following his release, he attended TAFE and worked with his uncle. Throughout 2016 he was drug-free.

40. The offender gave evidence that at the end of 2016, over the Christmas holiday period, he became complacent. He relapsed into drug abuse as a way of rewarding himself, and “reached out” to the wrong associates. In January 2017, he had met his current partner, and they formed a relationship. Following his arrest on 5 April 2017, he had been in custody and had time to reflect on his drug use. Through the courses he had completed, he had learned to be accountable for his actions. At times he became the session facilitator at such courses. Whilst in custody he had not succumbed to drug abuse and had been drug-free for over a year. He was also working on building related duties as a carpenter whilst in custody. He had had no misconduct offences whilst in custody.

41. When asked why, given his criminal history, a different outcome could be expected on this occasion, the offender gave evidence that he had recently had his 40th birthday. He had now matured and had a young son, and wanted to be a responsible parent. He would keep away from drugs upon his return to the community by continuously reaching out for assistance, by changing his attitudes and behaviour. He was very thankful now for the love and support he had from his family, his partner and his son.

42. The offender gave evidence that he now had a plan to attend Narcotics Anonymous for 90 meetings in 90 days upon his release. He intended to live on the Central Coast where there were resources available to achieve that. He had been completely honest in giving his history to the psychologist and was willing to participate in the cognitive behaviour therapy recommended by him.

43. The offender was asked about the remorse he had expressed to the psychologist. He gave evidence that he was disappointed by his relapse, that at times he did really well and then he would “drop the ball”. He now wanted to simplify his life and look after his family. The offender understood he had been given significant chances on numerous occasions by the court by the imposition of bonds to be of good behaviour, and that he had broken those bonds by re-offending. He said he was disappointed in himself but that he would keep trying not to relapse. When asked how the court could have confidence in him that he would stay away from prohibited drugs, he said that he wanted to apply himself to look after his son. Once he was released, he would cope by applying the lessons and attitudes he had learned and apply them to living on the outside. He wanted to be responsible for his partner and son and would have to go to regular meetings, meaning, Narcotics Anonymous.

44. In cross-examination, the offender acknowledged that the offence of supplying drugs was aggravated in that it was harmful to others in the community. He denied that he had had a number of opportunities in the past to rehabilitate himself, but conceded he had committed further offences after being treated leniently. He had also committed offences since forming his new relationship in January 2017. It was put to the offender that he had a disregard for court orders, which he denied.

The offender’s submissions

45. Learned Counsel for the offender relied on a written outline of submissions in which it was conceded that specific and general deterrence are relevant principles in the sentencing exercise, however these are mitigated by the offender's mental health issues. Counsel also conceded that the offender's criminal record does not assist him. It was submitted that the offender has made significant efforts at rehabilitation whilst in custody, and has significant family support.

46. The offender submitted that he entered a plea of guilty on 21 November 2017 to the two charges pursuant to H58689478. In respect of the second of those charges, i.e. escape from lawful custody, the offender asked that sequence 3 be taken into account on a Form 1, namely, resist officer in the execution of his duty.

45. An aggravating factor in these matters was that the offences were committed whilst the offender was on conditional liberty, and that is an aggravating factor pursuant to section 21A(3)(j) of the CSPA. It was submitted that the receiving charge displayed very little planning and the escape custody charge was clearly spontaneous, pursuant to section 21A(3)(b) of the CSPA. Whilst the items the subject of the receiving charge did not seem to be “overly valuable”, the personal inconvenience to the victim of the crime was conceded.

46. In respect of the second matter, namely sequence H63896045, supply prohibited drug, on 28 November 2016, being 27.75g of methylamphetamine. The accused was arrested for that matter on 5 April 2017 and he has been in custody since then. It was conceded that this offence was committed whilst on conditional liberty, and that was an aggravating factor pursuant to section 21A(3)(j) of the CSPA. It was further submitted that the offender was a user/ dealer at the time of this offence, and that the weight of 27.75g of methylamphetamine was well below the commercial quantity of 250g.

47. The offender submitted that the evidence in the report of Mr Tim Watson‑Munro dated 2 May 2018, and the affidavit of the offender's mother, Mrs Deborah Hawkins, set out significant subjective matters to be taken into account. The offender had a sad history of family violence during his childhood which led him to use drugs as a coping mechanism. It was submitted that the court could make a finding of reduced moral culpability on that basis. The offender had commenced using prohibited drugs from age 13.

48. The offender relied on the following mitigating features:

1. The offender had good prospects of rehabilitation and was unlikely to reoffend – s 21A(3)(g) and (h).

2. The offender is now 40 and had been abstinent from drugs whilst in custody for a period of over one year and two months. He had expressed a keenness to live a drug-free life and to engage with appropriate services to enable him to do so.

3. The offender had been attending Narcotics Anonymous whilst in custody, and acting as a facilitator of those meetings.

4. He had not incurred any institutional misconduct offences.

51. It was submitted that his time in custody had enabled the offender to gain insight into his addiction and to plan better for the future. He also had family support to enable him to achieve that. The offender also had good prospects of work as stated in a letter from his uncle, Mr Carl Erceg. If he utilises the support mechanisms available to him, on release he will have good prospects of rehabilitation.

52. It was submitted on behalf of the offender that, as the co-offender Mr Phan had pleaded guilty to a different and more serious offence, a strict application of the parity principle was not required in sentencing here. However, the principle of totality was relevant for a number of purposes. The first purpose was the assessment of concurrency and accumulation in respect of the subject offences, and in respect of the subject of the Severity Appeal. The second purpose was to assess the matter for which he received a custodial sentence whilst on remand for this matter. It was submitted that what is important is the assessment of proportionate punishment for the whole of the offending, which could be appropriately dealt with by way of an aggregate sentence pursuant to s 53A of the CSPA.

53. The offender submitted that an order should be made for special circumstances pursuant to s 44 of the CSPA. His long-standing mental health issues make his time in custody more onerous and further, he would require supervision and support once released into the community.

54. In her oral submissions, counsel for the offender referred to the evidence given by him under oath as set out above. It was submitted that his plan to continue his participation in Narcotics Anonymous would provide the court with some confidence as to his prospects for rehabilitation. The court would take into account the evidence of the psychologist, the support of his mother, and the fact that he had organised employment with his uncle, to be so satisfied.

55. It was submitted that it was inherent in the charge of supply methylamphetamine that the offence was committed without regard for public safety. It was also accepted that he was on conditional liberty at the time and that was an aggravating factor. It was further submitted that his criminal antecedents do not assist him, but should not be taken into account as an aggravating factor, relying on Veen v R[No. 2] (1988) 164 CLR 465.

56. It was submitted that the offender was entitled to a utilitarian discount for his plea of guilty on the receiving charge, on the basis that there had been negotiations at the committal stage and the offender had offered a plea to an alternative charge which was a lesser charge. Notwithstanding that the plea of guilty was entered after the first day the trial was listed, the range of the discount was between 5 and 10%.

57. Counsel conceded that the s 5 threshold had been crossed here, however, the court would take into account, as a matter of totality, that the offender had already served 455 days in custody. The evidence also established that the offender had spent time in a residential rehabilitation centre following his release on Supreme Court bail, and the court would take that period of six months into account as quasi-custody. An allowance could be made by way of a discount of three months for this time.

58. Counsel made it clear that the offender was not relying on his mental health to establish that his time in custody would create hardship, based on his evidence. In respect of the supply charge, however, it was submitted that it did not amount to trafficking prohibited drugs to a substantial degree.

The Crown submissions

59. The Crown also relied on a thorough written outline of submissions on sentence. Those submissions set out relevant sentencing principles which are not in dispute. In respect of the receiving stolen property offence, the Crown submitted that the objective seriousness of the offence fell below mid-range. An aggravating factor on sentence relied on by the Crown was that the offence was committed in company, pursuant to section 21A(2)(e) of the CSPA.

60. The Crown submitted that the offence of escape police custody was a very serious offence, although the offender was not in physical custody, he was informed that he was under arrest and he fled from police after they stated they wanted to search his vehicle. The Crown submitted that the objective seriousness of the offending fell below mid-range.

61. The Crown further submitted that the offence on the Form 1 should be taken into account by increasing the penalty that would otherwise be appropriate for the substantive offence of escape police custody.

62. In respect of the supply prohibited drug charge, the Crown submitted that the objective seriousness of the offence, considering the amount of the drug, its packaging and its purity, fell below mid-range. The Crown submitted, however, that an aggravating factor pursuant to section 21A(2)(i) was that the offence was committed without regard to public safety, relying on Mansour v R [2011] NSWCCA 28 at [49]. Further, the offence was committed whilst the offender was on conditional liberty pursuant to s 21A(2)(j).

63. With respect to the criminal antecedents, the Crown described the offender as a “recidivist offender”, having an extensive criminal history for drug, property and assault charges. His criminal history commenced in the Children's Court, and extended over a period of 26 years. Based on the extensive criminal history, it was submitted that the offender was not a person of good character. He could therefore be afforded no leniency in relation to his offending, which could be approaching the “aggravating factor” as found in Veen v R [No. 2], supra”.

64. It is submitted that the court could not be satisfied that the offender was unlikely to reoffend.

65. The Crown conceded that the offender should receive the full utilitarian discount for his plea of guilty in respect of the supply charge, however, the pleas in relation to receive stolen goods and escape police custody, were entered after the matter was listed for trial. The Crown submitted that the range of discount was between 5 and 10%, however, the Crown advocated that 5% discount be applied here.

66. The Crown submitted that an aggregate sentence pursuant to s 53A of the CSPA was appropriate.

67. The Crown submitted that along with general deterrence, specific deterrence was important here to send a strong message to the community that this type of criminal conduct will not be tolerated. It was submitted that the s 5 threshold had been crossed and there was no alternative other than a custodial sentence and that full-time custody was warranted.

68. In her oral submissions, the Crown conceded that a finding of special circumstances was warranted, but such a finding should not be used to ameliorate a sentence and that the non-parole period imposed must reflect the objective gravity of the offending. Each of the three offences, namely, receive stolen goods, escape police custody, and supply prohibited drugs, constituted offending below the mid-range for such offences. The most serious offence in the Crown's submission was that of supply prohibited drug pursuant to section 25(1) of the DMTA. The amount supplied, namely, 27.75g, was more than five times the indictable quantity. The next most serious offence was that of receiving stolen goods, and whilst the offence of escape police custody was the least serious, it was serious offending.

69. In respect of the offenders release to Supreme Court bail on condition that he attend a residential rehabilitation program, those bail conditions should be taken into account. Also, the fact that the offender was allowed to leave the facility after the first month on a daily basis would mean that the court would take into account less than half the time spent there as a discount on sentence.

70. The Crown submitted that the offender was entitled to a 25% utilitarian discount in respect of his plea of guilty to the supply charge, but any discount should be limited to 5% in respect of the two other matters.

71. The Crown submitted that the remorse expressed by the offender was general only, and not specific to the actual offending. It was submitted that the court would not be satisfied as to the offender's prospects of rehabilitation, given his criminal history and reliance on prohibited drugs in the past.

72. It was further submitted that given the nature of the offending conduct, the court would take into account the causal connection of the offences and his moral culpability. The court should also take into account the maximum penalties for the offences as set out above, and the history of the offender's criminal antecedents, including similar offences.

73. The Crown submitted that the s 5 threshold was crossed and only a sentence of full-time custody was appropriate.

74. In submissions in reply, Counsel for the offender explained the negotiations that had taken place at committal when an offer was made by the offender, which was rejected by the Crown. Only when the matter was listed for trial did the Crown offer to re-enter plea negotiations.

The severity appeal

75. The offender's submission in respect of the Severity Appeal was that the sentence imposed by the learned Magistrate of a head sentence of eight months with a non-parole period of six months, was too severe. The offending involved a larceny offence where the offender and a co-offender had stolen a sofa from the foyer of a large unit complex. It was submitted that there was little planning involved.

76. It was submitted that if the court was of the view that the sentence was appropriate, then the appellant submitted that the sentence should be back‑dated to commence on 3 October 2017.

77. The Crown had submitted that the sentence imposed by the Local Court was an appropriate sentence. At the time of the offence, the offender was on conditional liberty, being on bail in respect of the two subject offences, namely, receive stolen property and escape police custody. There was some degree of planning which aggravated the seriousness of the offending which fell within the mid-range for an offence pursuant to s 117 of the Crimes Act. The Crown submitted that it was an appropriate sentence.

Determination

78. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

79. I accept the Crown's submission that the objective seriousness of the offending in respect of the first offence of escape police custody is below mid‑range for this offence. The agreed facts demonstrate that it was clear to the offender that he was required by the police to stop and comply with their direction. Whilst I accept the offender's submission that the offending was spontaneous, it was an aggravating factor that he was on conditional liberty at the time of the offence. Whilst he was not in physical custody, he was informed by police that he was under arrest and he fled to avoid the consequences of that arrest. The objective seriousness of the offending was therefore just below the mid-range for the common law offence, and constituted serious offending.

80. I also accept the Crown’s submission that the objective seriousness of the second offence of receiving stolen property was below the mid-range for an offence pursuant to s 188 of the Crimes Act 1900. There was very little planning, however, an aggravating factor was that the offender was on conditional liberty at the time of the offending. A further aggravating factor was that the offence was committed in company pursuant to section 21A(2)(e) CSPA. I find that the objective seriousness of the offending was in the middle of the low range for an offence pursuant to section 188 of the Crimes Act 1900.

81. I further accept the Crown’s submission that the objective seriousness of the third offence of supply prohibited drugs (27.75g methylamphetamine) pursuant to section 25(1) of the DMTA, was below the mid-range for such an offence. It was, however, an aggravating factor that the offence was committed while the offender was on conditional liberty (pursuant to section 21A(2)(j)) and was committed without regard to public safety (pursuant to section 21A(2)(i)). The objective seriousness of the offending here, given the quantity of the prohibited drugs and the circumstances of the offending, was in the middle of the low range for an offence pursuant to s 25(1) of the DMTA.

82. In respect of that offending, I accept that the submission made on behalf of the offender that he was a user/dealer, and that the offending did not amount to trafficking prohibited drugs to a substantial degree. Rather, it was a product of the offender relapsing into drug use, and supplying drugs to obtain money for the purchase of the same drug for his personal use. It still constituted serious offending.

83. In respect of the offence of escape police custody, I have certified that I have taken into account the offence on the Form 1, namely, resist officer in the execution of duty pursuant to s 58 of the Crimes Act 1900. The police officer had placed his hand on the offender's arm, whereupon the offender had pulled away and fled. The offending was at the lower end of the range for an offence pursuant to s 58 of the Crimes Act 1900, however, it must be taken into account, by way of some accumulation in sentence, for the offence of escape police custody.

84. I have taken into account the fact that no maximum penalty is proscribed for the offence of escape police custody which is a common law offence. However, if dealt with summarily, the maximum penalty is 2 years imprisonment and/or 100 penalty units. I have also taken into account the maximum penalty of 10 years imprisonment for the offence of receive stolen property pursuant to s 188 of the Crimes Act 1900. I have also taken into account the maximum penalty of 15 years imprisonment and/or 2000 penalty units for the offence of supply prohibited drugs pursuant to s 25(1) of the DMTA. The maximum penalty proscribed in respect of each of the three offences are guideposts in the sentencing process.

85. I accept the Crown’s submission that the most serious of the three offences was that of supply prohibited drug pursuant to s 25(1) of the DMTA. The next most serious offence was that of receiving stolen goods, whilst the offence of escape police custody was the least serious of the three offences.

86. The offender is entitled to a 25% utilitarian discount in respect of his plea of guilty to the charge of supply prohibited drugs. That discount also takes into account the remorse expressed by the offender here. I accept that the offender's plea of guilty in respect of the charges of escape police custody and receive stolen property were late, and followed negotiations which were somewhat attenuated. In the circumstances, a discount of 10% is appropriate in respect of the offender’s plea of guilty to each of those charges.

87. I was impressed with the offender’s evidence as to his family background and the progress he has made with his rehabilitation from drug abuse since he has been in custody. It is no small thing to overcome a drug addiction, and particularly an addiction to a highly addictive drug such as methylamphetamine. The offender had been abstinent from drugs on three occasions since his early 20’s, and in 2015, had the benefit of a residential rehabilitation course at Niagara Lodge as a condition of his Supreme Court bail. After being drug-free during the whole of 2016, he relapsed, which gave rise to the current offences.

88. Given that history, it is difficult to find that the offender has good prospects of rehabilitation. However, he is now 40 years of age and must realise that he is at a crossroads in his life. His criminal history, on any view of it, is lamentable. As set out above, it includes numerous convictions for similar offences and shows that the offender has been treated leniently on numerous occasions by the imposition of bonds to be of good behaviour pursuant to s 9 or suspended sentences pursuant to s 12 of the CSPA. The fact that the subject offences were committed while he was on conditional liberty, demonstrate that he has no respect for the law.

89. Whilst the offender's criminal history has to be taken into account in determining the sentence to be imposed, it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the subject offences. In Veen v R [No. 2], supra, the High Court said at p 477:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take into account the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.”

90. General deterrence is important to the sentencing process here. A clear message must be sent to like-minded persons in the community that Parliament has proscribed heavy maximum penalties for the offences of receiving stolen property and supplying prohibited drugs, and that the courts will impose long terms of imprisonment where the circumstances mandate, condign punishment. Specific deterrence is also important in that the offender must understand that further offending will result in him spending lengthier periods of his life in custody.

91. I have taken into account the subjective matters set out in the report of Mr Watson-Munro, and the affidavit of Mrs Hawkins, the offender's mother. I have also taken into account the progress he has made with his own rehabilitation from drug dependency, and I accept that he now has some motivation to live a drug-free life, given his relationship and the recent birth of his son. The offender has good family support and the prospect of employment upon his release from custody. Given his need for ongoing supervision to oversee his drug rehabilitation and his return to being a productive member of society, I find that there are special circumstances pursuant to s 44 of the CSPA, so as to vary the ratio between any head sentence and non-parole period.

92. This is an appropriate matter for an aggregate sentence to be imposed pursuant to s 53A of the CSPA. However, before imposing such sentence, I am required to set out the indicative sentences I would have imposed in respect of each offence, having regard to the objective seriousness of the offending, the subjective matters I have referred to above, and the utilitarian discount on sentences that I have applied.

93. The indicative sentences are as follows:

1. For the offence of escape police custody, indicative sentence of 9 months imprisonment.

2. For the offence of receive stolen property, indicative sentence of 1 year and 9 months imprisonment.

3. For the offence of supply prohibited drug, indicative sentence of 2 years and 6 months imprisonment.

94. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

95. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

96. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.

97. In arriving at the aggregate sentence here, I have taken into account the aggravating and subjective matters set out above, the offender's acknowledgement of guilt in respect of the offence on the Form 1, and a discount of three months in respect of the quasi-custody occasioned by the offenders attendance for six months at the residential rehabilitation centre whilst on Supreme Court bail. Clearly, the threshold contained in s 5 of the CSPA has been crossed, and I am satisfied that there is no alternative to imposing a sentence of imprisonment in this matter. In applying the principles of totality and proportionality to the offending conduct here, given the serious nature of the criminality involved, I intend to sentence the offender to a term of imprisonment of 3 years and 6 months. In doing so, I acknowledge that he has already spent 462 days in custody. I intend to impose a non parole period of 2 years and 3 months to commence on 3 February 2017 and to terminate on 2 May 2019. The balance of the term will be from 3 May 2019 to 2 August 2020.

98. With respect to the Severity Appeal regarding the offence of larceny pursuant to s 117 of the Crimes Act 1900, I find, having regard to the planning involved to gain access to the premises, the value of the goods stolen and the criminal antecedents of the offender, the sentence imposed by the learned Magistrate was within an appropriate range of sentence and no error has been demonstrated in relation to it. However, as the offence was close in time to that of the supply prohibited drugs offence, there should be some concurrency in sentence and I therefore back-date the sentence imposed by the learned Magistrate to commence on 3 October 2017. The non-parole period will therefore expire on 2 April 2018.

99. Finally, with respect to the related offence on the s 166 certificate of goods in custody suspected stolen in premises or motor vehicle (sequence 4), I intend to impose a sentence of 6 months imprisonment, to be served concurrently with the subject offences and therefore to commence on 3 February 2017 and to terminate on 2 August 2017.

Orders

100. I therefore make the following orders:

1. You are convicted of the following offences:

H58689478 – escape police custody;

H58689478/OCI 1008 – receive property – theft – serious indictable offence greater than $5000, pursuant to s 188 of the Crimes Act 1900;

H63896045/1 - supply prohibited drugs greater than indictable quantity (27.75g methylamphetamine) pursuant to s 25(1) of the DMTA.

2. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA. There will be a non-parole period of 2 years and 3 months commencing on 3 February 2017 and expiring on 2 May 2019.

3. The balance of term of 15 months will commence on 3 May 2019 and terminate on 2 August 2020. The total sentence will be 3 years and 6 months.

4. You are convicted of the related offence contained in the s 166 certificate, namely, sequence 4, goods in custody suspected stolen in premises or motor vehicle. You are sentenced to a fixed term of 6 months in respect of that offence to commence on 3 February 2017 and to expire on 2 August 2017.

5. I note that the two back-up offences on the s 166 certificate, being sequence 6 and sequence 7 are withdrawn and dismissed.

6. I have certified that I have taken into account on a Form 1 the offence of H58689478/3 – resist officer in execution of duty pursuant to s 58 of the Crimes Act 1900.

Note: Additional orders made in respect of 8 matters of call-up for breach of s 9 Bonds (4) and s 12 Bonds (4).

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Decision last updated: 11 May 2018