R v Heath

[2000] NSWCCA 509

CITATION:	R v Heath [2000] NSWCCA 509
FILE NUMBER(S):	CCA 60296/00
HEARING DATE(S):	30/11/00
JUDGMENT DATE:	30 November 2000
PARTIES :	Michael Heath Regina
JUDGMENT OF:	Wood CJatCL at 1

LOWER COURT JURISDICTION:	Drug Court
LOWER COURT FILE NUMBER(S) :	99/0151
LOWER COURT JUDICIAL OFFICER :	Murrell DCJ

COUNSEL :	W. Dawe QC for Crown Prosecutor Applicant in person
SOLICITORS:	SE O'Connor
DECISION:	Leave to appeal is granted. Appeal is dismissed

IN THE COURT OF
CRIMINAL APPEAL

60296/00

WOOD CJ AT CL

THURSDAY 30 NOVEMBER 2000

REGINA v MICHAEL HEATH

JUDGMENT

1 HIS HONOUR: The applicant seeks leave to appeal against the severity of a final sentence which was imposed upon him, pursuant to section 12 of the Drug Court Act 1998, by her Honour Judge Murell SC in the Drug Court, on 11 May 2000. By reason of the special jurisdiction exercised by her Honour, it is to be noted that the application is to be considered by me in accordance with sections 5AA and 5AF of the Criminal Appeal Act 1912, and in accordance with the principles which were conveniently assembled by Smart AJ, in McCrea (2000) NSW CCA 300. 2 The applicant was charged with a number of offences that were referred to the Drug Court on 3 June 1999. Initial sentences were imposed by her Honour as follows.

(a) steal motor vehicle, 4 months 1 week;
(b) custody of knife in public place, one penalty unit;
(c) drive whilst licence cancelled, three months;
(d) take and drive motor vehicle, 4 months 1 week;
(e) possess prohibited drug, 1 month;
(f) possess utensils, 1 month;
(g) goods in custody, 3 months;
(h) negligent driving, 1 month;
(i) drive while disqualified, 3 months;
(j) drive unregistered and uninsured motor vehicle, 1 penalty unit each;
(k) use unauthorised number plates, 1 penalty unit;
(l) take and drive motor vehicle without consent, 5 months 1 week;
(m) drive manner dangerous, 5 months 1 week;
(n) drive whilst licence cancelled, 3 months:
(o) possess car-breaking implements, 5 months 1 week;
(p) custody of knife in public place, 1 penalty unit;
(q) goods in custody, 1 month.

3   These offences were committed between 13 January 1998 and 13 May 1999. The sentences were divided, for the purposes of determining whether they were to be served concurrently or cumulatively. The effective result was an accumulation of nine months two weeks, with the sentences for the pre 11 May 1999 offences being served concurrently with the sentence of four months and one week; and the later sentences being served concurrently with that of five months one week. 4   On 2 August 1999 an initial sentence of ten months, and a sentence of one penalty unit, were imposed upon the applicant for further offences of drive whilst disqualified and use unauthorised number plates. Those offences occurred on 27 July 1999, after the Drug Court programme had commenced. 5   On 13 October 1999 applicant was given further initial sentences for the following fresh offences, which occurred on 28 August 1999, again during the currency of the Drug Court programme:

(a) custody of a knife in public place, one penalty unit;
(b) drive whilst disqualified,6 months;
(c) possess implements, 6 months;
(d) attempt take and drive motor vehicle without consent, 20 months.

6 All of the sentences were suspended for the purposes of allowing the applicant to enter into and thereafter to remain on the Drug Court programme. That programme was however eventually terminated, pursuant to section 10(1)(b) and section 11(1(c) of the Drug Court Act, and he was then called up for final sentence in accordance with section 12 of the Act. 7 By the time that occurred, on 11 May 2000, it had become apparent that fresh offences of drive whilst disqualified, and drive uninsured and unregistered motor vehicle, had been committed by the applicant on 10 December 1999. To each of those offences the applicant pleaded guilty. 8 Murrell DCJ assessed these further offences as very serious, since they had been committed while the applicant was on the Drug Court programme, or at least anticipating final sentence for matters which had taken him on to that programme. Additionally she was concerned because the December matters involved the third set of such offences , and occurred after the applicant had been offered the opportunity of the programme to rehabilitate himself. 9 She noted that while she would otherwise have accumulated the sentences for these further offences upon the earlier sentences, she was constrained from doing so by section 58 of the Crime (Sentencing Procedure) Act 1999. To that extent some advantage was accrued to the applicant by reason of his involvement in the programme, even though it had been terminated. 10 In the course of passing final sentence her Honour recorded the history I have outlined and noted that, prior to the imposition of the initial sentences, the applicant had served seven weeks in custody and that the sentences then imposed had taken that circumstance into account. She also noted that the performance of the applicant on the programme had begun by being unacceptable, yet had improved as he received assistance for his problems of impulse control and aggression. His history was noted as comprising one of significant drug abuse involving very serious amphetamine addiction. He was seen to have had a difficult family background and he was assessed as having lurched from crisis to crisis. 11 With the counselling received her Honour observed there had been a significant improvement in his behaviour, while in Court, and she noted that the South Western Sydney Area Health Service thought him capable of moving, albeit slowly, to a drug free lifestyle. She made it clear, in her reasons for sentence, that she had taken into account all of these matters, and additionally had taken into account her assessment of the applicant's performance on the programme. Her conclusion in that regard was stated thus: "At times the applicant has made a great effort to engage in a Drug court programme. Ultimately he has not made sufficient progress to satisfy the Court that there is a useful purpose in keeping him on a programme". 12 She noted additionally that, before imposing sentence, he had served 43 days in custody, up to 8 February 2000, by way of sanctions for misconduct during the programme. She further noted he had been in custody since 6 April 2000. 13 All of the initial sentences, save for the 20 months fixed term imposed on 13 October 1999, were confirmed. Those relating to the offences committed before 11 May 1999 were directed to commence on 11 May 2000. The sentence imposed on 2 August 1999 was similarly directed to commence on 11 May 2000. The other confirmed sentences were directed to be served cumulatively upon the sentences for the pre 11 May 1999 offences. As a consequence they were due to commence on 18 September 2000. The sentence of 20 months, imposed on 13 October 1999, was set aside and the appellant was then sentenced to a term of imprisonment of approximately 17 months, to commence on 11 May 2000 and to expire on 15 October 2001, with a non-parole period fixed to expire on 15 April 2001. 14 In relation to the fresh 10 December 1999 offences, the applicant was sentenced, for the drive whilst disqualified offence, to a fixed term of 12 months to commence on 11 May 2000; and for each of the drive whilst disqualified and drive uninsured vehicle offences, he was sentenced to one penalty each i.e. a total of two penalty units. 15 The applicant appeared in person to argue the appeal. He submitted in effect that the final sentence was manifestly excessive, when compared with those imposed on other offenders admitted to the Drug Court programme. Additionally, he submitted that her Honour fell into error in not backdating the sentences, in not regarding the offences while on the programme as other than relatively insignificant and in not taking into account the progress which he claims to have made. 16 In my view there is no merit in the submissions. Her Honour was far better placed than this Court to assess the applicant, having seen him from the commencement of the programme, and having seen him on the various occasions that he was called up for further consideration. Nothing has been placed before me to show that there was any error in the way that her Honour assessed his performance. 17 This morning the applicant has, in unequivocal terms, claimed to be a significantly improved person by reason of his exposure to the program, and also by reason of the opportunity which he has recently had while in custody to re-establish relationships with his family, particularly his father and his son. 18 He has indicated that what he really seeks, on this occasion, is the opportunity of an extended period of release on parole, so that he can have something hanging over his head to encourage his co-operation with further rehabilitation and counselling. 19 He is now 33 years of age. His prior record is very bad, but it may be hoped that he can overcome what was clearly a significant amphetamine problem and can now come to his senses and establish a worthwhile life. In that regard, it is a very encouraging factor that he wishes to ensure that his son does not follow in his footsteps. 20 These are all entirely positive matters, particularly as history does show that offenders of his kind do often come to a realisation as to the futility of their conduct when they reach their early 30's as he has done. However, that all needs to be considered in the light of the applicant’s performance to the time that he appeared for final sentence. 21 The object of the Drug Court legislation is to reduce the level of criminal activity that results from drug dependence, and also to endeavour to ensure a significant diminution in the use of prohibited substances. While it is clear that the applicant did make some qualified progression during the period of the programme and reduced his drug intake, he did not remain free of continuing criminality. 22 Little can be achieved in attempting a comparison between the final sentences imposed upon him with that imposed upon other offenders who come within the programme. In view of the subjective assessment that is required of their progress, and in view of the inevitable differences between them, so far as any re-offending is concerned, principles of parity between co-offenders are of little value, if of any value at all, in this respect. 23 In this case, I take the view that the number of offences involved, both those the subject of the initial sentences and additional offences, were so numerous and displayed such a continuing disregard for the law, that I am unable to accept that the ultimate sentencing outcome fell outside a legitimate exercise of sentencing principle. 24 Whilst it is usual to backdate for a period of custody solely referable to the offence for which a sentence is imposed, that is not a mandatory requirement: see R v English 2000 New South Wales Court of Appeal 245. In the present case it would have been a little artificial to do so, in view of the earlier broken periods of custody and the number of offences involved. Any prior period of custody could equally well be allowed for by a shortening of the further period of custody fixed by the sentencing order. Clearly that is what occurred, in the present case, since her Honour made it plain that she had taken into account the earlier periods of custody which had been served, including the sanctions. 25 There was no breach of section 12(4) of the Act in that the final sentence, even allowing for the earlier periods of custody, did not exceed the initial sentence. 26 I would reject the proposition that the three separate groups of further offences, so far as they involved driving offences, which occurred after the entry into the programme, were not serious matters. They clearly had that character. The very circumstance that the applicant has advanced such a proposition suggests an apparent and continuing inability on his part to recognise the irresponsibility of his conduct. He must understand that he is not entitled to drive a vehicle, while disqualified or unlicensed, nor is he entitled to make use of false plates or otherwise use vehicles without the consent of their owners. Those offences are regarded as serious matters, particularly where there has been a lengthy history of similar criminality. 27 Having regard to all these matters I take the view that leave to appeal should be granted but the appeal should be dismissed. It is accordingly dismissed. 28 Mr Heath, I am sorry I have had to refuse the appeal. You should understand after you have finished the non-parole period and are released to parole you will have the benefit of six months supervision. After that has finished it is in your interest to maintain contact with the counsellors and the Parole Service because they are willing and able to help you even after you have finished the parole period. You have to regard this as a lesson which is a hard lesson but, until April next year is not a lengthy period and you can after that, get on with your life and, I suggest do your best to stay away from drugs. It is in your hands.

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