R v Justin Moroney

[2007] NSWDC 154

CITATION:	R v Justin Moroney [2007] NSWDC 154
HEARING DATE(S):	13 & 15 December 2006 23 February 2007 23 & 29 March 2007
JUDGMENT DATE:	2 April 2007
EX TEMPORE JUDGMENT DATE:	3 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Robbery in Company - Sentenced: Non parole period 15 months commence 1/2/07 expire 30/4/08; Balance of term – 9 months expire 30/1/09; Order accused release to P&P on 30 April 2008 ; Recommend Parole Board set conditions that accused be subject to intense supervision and original s.11 bail conditions be regarded as appropriate for accused to engage in whilst on parole
CATCHWORDS:	Criminal Law - Sentence - Breach s.11 Crimes (Sentencing Procedure) Act 1999 bail - criteria for eligibility for Drug Court program - s5A Drug Court Act 1998 - "eligible convicted offender" meaning of - juvenile record - probation without conviction - whether constitutes "conviction" for purposes of "eligible convicted person" - s14 and 15 Children (Criminal Proceeding) Act .
LEGISLATION CITED:	Drug Court Act (1998); Drug Misuse and Trafficking Act (1985); Criminal Procedure Act; S's 14 & 15 Children (Criminal Proceeding) Act 1987
CASES CITED:	Griffiths v The Queen (1977) 137 CLR 293
PARTIES:	Regina Justin Moroney
FILE NUMBER(S):	05/11/0727
COUNSEL:	Fw: Mr A. Barber
SOLICITORS:	Crown: Ms Davis - Office of Director of Public Prosecutions - Sydney

SENTENCE

1 On 4 July I granted section 11 [Crimes (Sentencing Procedure) Act 1999] bail to Justin Moroney for an offence of robbery in company of a twenty-one year old uni student Jason Chan. The details and circumstances of that robbery were reviewed in some detail in remarks made by me at the time. Among the matters that persuaded me to give Moroney an opportunity to establish that he could rehabilitate were:

• The robbery itself was one that fell towards the less serious range of robberies in company with corporal violence.
• The offender’s role in the robbery was one of the lesser roles.
• The offender had been in prison unable to make bail when he had been serious sexually assaulted.
• He appeared to have strong family support, especially from his mother and brother.
• There was report of him being overly dependent upon his mother.
• In the past he had placed himself in a rehabilitation program, suggesting a willingness to engage in rehabilitation.
• He had suffered traumatic brain injury as a result of a vicious assault some time before this offence.
• There was evidence before me of an extensive community based program that would assist Moroney rehabilitate and recommendations from professionals then involved with the offender to pursue that course.

2 In giving him bail pursuant to section 11 of the Crimes (Sentencing Procedure) Act a number of conditions were imposed, including that he be of good behaviour. Others related to his continued interaction with professionals relating to his health, drug and alcohol problems and vocational issues. He was also required to attend Court at regular intervals so his progress could be monitored. Initially his response was modest at best, from that it deteriorated. Eventually it reached a point where his response was so poor that his bail was revoked.

3 It has now become necessary to sentence Moroney for his part in the robbery of Chan in company with corporal violence. Mr Barber, who has appeared for Justin Moroney throughout, has submitted that in setting the sentence I should consider fixing a sentence that would permit me to refer the offender to the compulsory Drug Court rehabilitation program.

4 The sentence I am inclined to fix may well have fallen within the parameters to make the offender eligible. However, eligibility criteria is determined by section 5A of the Drug Court Act (1998), it is in the following terms:

(1) A person is an eligible convicted offender if:
(a) the person is convicted of an offence, other than an offence referred to in subsection (2) and
(b) the person has been sentenced to a term of imprisonment for the offence to be served by way of full-time detention and the unexpired non-parole period in relation to that sentence is:
(i) at the time the Drug Court is determining whether to make a compulsory treatment order with respect to the person a period of no more than 3 years, and
(ii) at the time that the sentence was imposed a period of at least 18 months, and
(c) the person has, in the 5 year period immediately before the person was sentenced, been convicted under a law of this State or under a law of the Commonwealth or another State or Territory or of another country, of at least 2 other offences, not being offences arising out of the same circumstances, that resulted in any one or more of the following:
(i) a sentence of imprisonment (including a sentence of imprisonment that was suspended),
(ii) the making of a community service order (however described),
(iii) the entry into a good behaviour bond or recognizance (however described), and
(d) the person has a long-term dependency on the use of prohibited drugs (within the meaning of the Drug Misuse and Trafficking Act 1985) or other drugs prescribed the regulations, and
(e) the facts in connection with the offence for which the person has been sentenced, together with the person’s antecedents and any other information available, indicate that the offence was related to the person’s long-term drug dependency and associated lifestyle, and
(f) the person satisfied such other criteria as are prescribed by the regulations.
(2) A person is not an eligible convicted offender if the person has been convicted of any of the following:” (None of these offences apply in the instant case)
“(3) A person is not an eligible convicted offender if, in the opinion of the Drug Court:
(a) the person suffers form a mental condition, illness or disorder:
(i) that is serious, or
(ii) leads to the person being violent, and
(b) the mental condition, illness or disorder could prevent or restrict the person’s active participation in a drug treatment program.”

5 There are two aspects of the definition that are of concern, namely whether Moroney has the requisite number of convictions and, if so, whether his mental health condition would otherwise preclude him from eligibility.

6 Whether his mental health condition precludes him from selection is ultimately a decision for those who administer the compulsory drug treatment program (in the opinion of the Drug Court). That would not mean that I would have no regard to his mental condition and the likelihood of him passing or finding the statutory criteria of (a) suffering from a mental condition, illness or disorder that is serious or leads to him being violent, and is of such a quality that it could prevent or restrict his active participation in the drug treatment program.

7 As reviewed in the remarks made by me on 4 July last year, the offender does suffer from a mental condition that is serious. However, there is the second leg, that is, would it prevent or restrict his participation in the drug treatment program. It is certainly open on the evidence that in a structured situation such as the compulsory drug treatment program the offender would not be ruled out on that second leg. If not ruled out on the second leg, then his eligibility would depend upon whether he had the relevant prior convictions.

8 Given that it would be open for the Drug Court to come to one view or another on the impact of his serious mental condition and his capacity to participate actively in the drug treatment program, it is not appropriate for me to exclude the offender on that consideration.

9 However, it appears to me Moroney does not quality for the compulsory drug treatment program upon the basis of section 5A(1)(c) of the Drug Court Act. That requires that he be convicted of at least two other offences in a five year period. It is true those offences do not have to predate the offence with which I am dealing but certainly have to predate today’s date, that is the date on which the sentence is to be imposed.

10 A review of the offender’s criminal history shows that as an adult there is a conviction and a section 9 bond for breaking, entering a building. The charge for that offence appears to have occurred on 24 August 2005. He was convicted by Manly Local Court on 14 February 2007 for entering enclosed lands without lawful excuse. That offence is said to have occurred during the bail that I gave him on 18 November 2006. For that offence he was fined $200. There is also a shoplifting offence dealt with on the same occasion, for which he was fined $500. On 29 November 2006 he was again charged with enter enclosed lands. That matter was also dealt with on 14 February 2007 and he was fined $200. It is to be remembered he surrendered the day following those convictions.

11 I understand there are other charges he faces, where the convictions recorded by the Local Court have now been annulled. They do not appear to be any of the offences to which I have just referred. It can be seen in respect of these offences he has been fined on all occasions but for one when a section 9 bond was received for the breaking, entering and stealing that occurred on 24 August 2005. In other words none of the other offences he has committed as an adult are sufficient to qualify as two convictions for which he has either received a sentence of imprisonment, a community service order or a good behaviour bond.

12 Mr Barber noted that as a juvenile he had been placed on probation on half a dozen occasions but in each case it was without conviction being recorded. Whether these offences qualify as offences connected with his drug dependency was not proved in evidence but for the purposes of proceeding I am prepared to assume that at least some of them do.

13 Putting that issue then to one side, Mr Barber sought to argue that I would find, for the purposes of the Drug Court Act, the placing of an offender on a probation could be construed as a relevant conviction or could be construed as an entry into a good behaviour bond or recognizance upon conviction. He pointed to the fact that section 10 Crimes (Sentencing Procedure) Act discharges can be construed, for the purposes of some Acts, for instance Motor Traffic Points Schemes, as a conviction. However, that argument cannot succeed. Where section 10 discharges are so regarded as convictions for some particular purpose, there is a statutory provision to that effect. I have not had the time to research over the weekend but I will if necessary find the relevant provision and include it there.

14 The common law position in regard to convictions was reviewed at length in Griffiths v The Queen (1976-77) 137 CLR 293. Convictions have a particular significance and stigma in the criminal law. There is no warrant to imply a conviction if the statutory or common law does not mandate it. While it is true the compulsory drug treatment program is a statutory provision relating to enforced rehabilitation, that concept as best I can determine it, was first referred to by Barwick CJ in Griffiths (ante). Enforced rehabilitation is, in a sense, beneficial to a prisoner. Thus one would expect, when interpreting the statute creating an entitlement to it, that one would seek to make it “inclusive” rather “exclusive”.

15 But to do so in this case would fly in the face of the meaning given to “conviction” in the Children (Criminal Proceedings) Act 1987, (see sections 14 and 15).

16 Section 14 of that Act gives or recognises a power of a court to deal with a child who has pleaded guilty to, or been found guilty of, an offence which is disposed of summarily, by refusing to record a conviction in relation to a child who is above the age of sixteen. Section 15 of the Act provides that such a person - who does not have a conviction, and has not within a period of two years prior to the commencement of other proceedings with which he is being dealt - can not have that matter of the prior offence led in those proceedings, say by way of bad character evidence, or by way of sentencing in relation to an appropriate penalty for prior offending [in a court other than the Children's Court]. My view is that the offender does not qualify [as an "eligible convicted person"] on the basis of his convictions.

17 What I propose to do now is to proceed to sentence him. In so doing I stress that I have taken into account all of the matters that I referred to in my remarks made on 4 July 2006. I have taken into account the time that he has been in custody, which I have equated to eight weeks and four days. That eight weeks and four days is comprised of seven weeks and four days actual custody and seven days allowed for a fourteen day period when the offender was in full-time rehabilitation in Kempsey. The consequence of doing that is to require me to backdate this sentence to 1 February 2007.

18 Could you stand up please Mr Moroney? Mr Moroney, I must have convicted you of the offence already, for that offence, that you on 30 March 2005 at Beacon Hill robbed Jason Chan of cash and immediately before the robbery used corporal violence on him, I sentence you to fifteen months non-parole to date from 1 February 2007 and to expire on 30 April 2008. I set a balance of term of nine months, to expire on 30 January 2009. I order your release to parole on 30 April 2008.

19 I recommend to those whose ultimate decision is to set the conditions for your parole, that you be subject to close and intense supervision and that items discussed in the original bail conditions set for you be considered as appropriate for you to engage in whilst on parole. Any other order?

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