R v Henare
[2003] NSWCCA 376
•1 December 2003
CITATION: R v Henare [2003] NSWCCA 376 HEARING DATE(S): 01/12/03 JUDGMENT DATE:
1 December 2003JUDGMENT OF: Smart AJ at 1 DECISION: See para 20. CATCHWORDS: Non-parole period should have been fixed LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: nil PARTIES :
Regina v Leonard John Henare FILE NUMBER(S): CCA 60359/03 COUNSEL: (A) R Hulme SC
(C) F GuySOLICITORS: (A) B Sandiland
(C) C K Smith
LOWER COURTJURISDICTION: Drug Court LOWER COURT FILE NUMBER(S): 2002/0100 LOWER COURT
JUDICIAL OFFICER :Milson DCJ
60359/03
Leonard John HENARE v REGINA (NSW)
JUDGMENT
1. SMART AJ: Leonard John Henare has sought leave to appeal against two sentences imposed by the Drug Court. He has appealed against one of 18 months fixed term for break and enter with intent to steal on 24 February 2002 at Croydon, such sentence commencing on 7 December 2002. He also appeals against a sentence of 18 months fixed term commencing on 7 December 2002 in respect of a charge of drive whilst disqualified between 1-8 November 2002 at Casula. In all, sentences were imposed for 11 offences. He has not appealed in respect of matters 1, and 4 to 11.
2. The judge dealt with the offences in two batches, imposing concurrent sentences on matters 1 to 4 and concurrent sentences on matters 5 to 11. Those imposed on these latter counts were cumulative to those imposed on counts 1 to 4.
3. As to the sentence of 18 months fixed term for break and enter with intent to steal on 24 February 2002 (matter 2), the applicant did not cavil with the judge taking a starting point of 2 years, and rightly so.
4. The judge in nominating that sentence said:
“There may be subjective matters today that suggest there be some alternative to full-time imprisonment or a change in parole period appropriate for this offender. If there are they have not been put to me and I do not take them into account because, today, the sentence I impose will be suspended to allow the offender to commence a Drug Court programme.
These sentences will be set aside later and then he will be re-sentenced and then the Court will take into account not only the nature of his participation in the Drug Court program but other matters that might indicate what penalty is needed to protect the community from this person or to express the seriousness of the crimes that he has committed. But without that information the appropriate penalty for the offence of breaking and entering with intent to steal would be a sentence of imprisonment for two years.”
5. Earlier the judge had said that in imposing that sentence he had taken into account the pleas of guilty and the applicant's past criminal history. The applicant's sentence of two years was reduced to a period of one year, eight months and one week to allow for the fact that the applicant had been in custody from 24 February until 11 June.
6. Regrettably, the applicant's progress through the Drug Court was not as desired. The applicant was at Odyssey House from about 11 June 2002 until 28 July 2002. When he left Odyssey House he surrendered himself to the Drug Court and was placed in the community. He did not continue with that program and ultimately he was apprehended on 16 August 2002.
7. He remained in custody and came before the Drug Court for a "useful purposes" argument on 9 September 2002. This was resolved in his favour and he was released from custody on 1 October 2002 to enter The Glen. He left The Glen on 14 October 2002 and, as a consequence, the Drug Court program was terminated on 15 October 2002.
8. The judge, when he came to re-sentence on 17 February 2003, allowed for the period the applicant had spent in custody, namely from 16 August 2002 until 1 October 2002, and also for the periods which he spent in Odyssey House and The Glen although that could not be treated as the equivalent of full-time custody but allowance had to be made because of the restrictions of those rehabilitation centres. The judge ultimately ended up with a sentence of 18 months.
9. It seems that having started with a sentence of two years and reduced it to 20 months and 1 week, because of pre-sentence custody, the sentence was further reduced to 18 months which allowed for approximately six weeks in custody and six and a half weeks in a rehabilitation centre. No non-parole period was set at any stage.
10. The complaint of the applicant is that if the judge was going to use fixed terms he should have used a period closer to the non-parole period than the head sentence. The judge could have done that or fixed a non-parole period in relation to the sentence of 18 months. The latter is the preferable course. A non-parole period should have been set, in respect of the sentence of 18 months, of 13 months 2 weeks.
11. The special circumstances were sufficiently taken into account when dealing with the second group of offences and a further allowance should not be made in respect of them in the first sentence.
12. The appellant has also appealed in respect of the sentence of 18 months for the offence of drive whilst disqualified. That appears to have occurred between 1 and 8 November 2002.
13. On that day the applicant stole a motor vehicle and then drove it while he was disqualified from driving. The applicant pleaded guilty. This offence is related to another offence committed on 1 November 2002 and included in the second batch of offences and sentences. He received a sentence of 12 months fixed term for the larceny of the motor vehicle (matter No. 6)
14. As to the second batch of offences (namely, matter numbers 5 to 11) the applicant had received in respect of the most serious of those offences (namely, a break, enter and steal on 7 December 2002 at Ingleburn) a sentence of three years with a non-parole period of 18 months. This is not challenged.
15. As to the other offences in the second batch, the applicant's subjective circumstances were taken fully into account.
16. The judge made the sentence for drive whilst disqualified wholly concurrent with the offence of break and enter with intent to steal on 24 February 2002 at Croydon.
17. The Crown correctly drew the Court's attention to the applicant's poor driving record. There are a number of entries for being an unlicensed driver dating back to 1995 in the Children's Court and then there are a number of offences for driving whilst disqualified. The subject offence was the third of its kind over a period of years.
18. Nevertheless, bearing in mind that there was a plea of guilty and the connection with other offences, a term of imprisonment of 18 months strikes me as being what in effect is a head sentence. It was a case in which the normal procedure should have been followed of setting a non-parole period or, alternatively, setting a fixed term sentence that was closer to the non-parole period than the head sentence.
19. The appeals in relation to matters numbers 2 and 3 (that is, break and enter with intent to steal on 24 February 2002 and drive whilst disqualified on 1 to 8 November 2002) should be allowed and a non-parole period of four and a half months should be set in respect of each offence. They should remain concurrent.
20. In respect of each of the offences of break and enter with intent to steal and drive whilst disqualified leave to appeal is granted, the appeal against sentence allowed and the sentence quashed. In lieu of the sentence imposed in each case there will be a sentence of imprisonment of 18 months with a non-parole period of 13 months and 2 weeks. Each of the sentences is to commence on 7 December 2002 and the non-parole period will expire on 20 January 2004.
21. Pursuant to s.59 of the Crimes (Sentencing Procedure) Act 1999 there has to be a consequential adjustment to the remaining sentences, that is, matters numbers 5 to 11, so that each starts on 21 January 2004. The non-parole periods will remain in respect of each of those sentences, with the non-parole periods expiring on 20 July 2005.
22. I have been asked to nominate specifically in relation to each offence what is to happen and I think that is desirable.
23. In the first matter (break, enter and steal; 24 September 2000 at Chester Hill) the sentence of 12 months fixed term imprisonment commencing on 7 December 2002 remains undisturbed.
24. In the second matter (break and enter with intent to steal; 24 February 2002 at Croydon) the sentence becomes a head sentence of 18 months imprisonment commencing on 7 December 2002 with a non-parole period of 13 months 2 weeks expiring on 20 January 2004.
25. In the third matter (drive whilst disqualified; 1-8 November 2002 at Casula) the sentence becomes a head sentence of 18 months imprisonment commencing on 7 December 2002 with a non-parole period of 13 months, two weeks commencing on 7 December 2002 and expiring on 20 January 2004.
26. In the fourth matter (carried in a conveyance; 16 August 2002 at South Windsor), the sentence of 12 months fixed term imprisonment commencing on 7 December 2002 remains undisturbed.
27. In the fifth matter (break, enter and steal; 7 December 2002 at Ingleburn), the head sentence of three years imprisonment commences on 21 January 2004 with the non-parole period of 18 months expiring on 20 July 2005.
28. In the sixth matter (larceny of motor vehicle; 1 November 2002 at Macquarie), the sentence of 12 months fixed term imprisonment commences on 21 January 2004.
29. In the seventh matter (break, enter and steal; 1 November 2002 at Wattle Grove), the head sentence of two years imprisonment commences on 21 January 2004 with a non-parole period of 18 months expiring on 20 July 2005.
30. In the eighth matter (break, enter and steal; 4 November 2002 at Liverpool), the head sentence of 2 years commences on 21 January 2004, with a non-parole period of 18 months expiring on 20 July 2005.
31. In each of the ninth matter (break, enter and steal; 4 November 2002 at Liverpool), the tenth matter (break, enter and steal; 8 November 2002 at Casula) and the eleventh matter (break, enter and steal; 22 November 2002 at Wattle Grove) the head sentence of 2 years commences on 21 January 2004 with a non-parole period of 18 months expiring on 20 July 2005
Last Modified: 12/22/2003
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