R v McCrea

[2000] NSWCCA 300

Reported Decision: 114 A Crim R 226

New South Wales

Court of Criminal Appeal

CITATION:	R v McCrea [2000] NSWCCA 300
FILE NUMBER(S):	CCA 60247/99
HEARING DATE(S):	28 July 2000 (Orders Made)
JUDGMENT DATE:	11 August 2000
PARTIES :	Regina v Wayne Ronald McCrea
JUDGMENT OF:	Smart AJ at 1

LOWER COURT JURISDICTION:	Drug Court
LOWER COURT FILE NUMBER(S) :	99/0015
LOWER COURT JUDICIAL OFFICER :	Murrell DCJ

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 - Rehearing - Admission of further evidence on special grounds - power to impose suspended sentence
LEGISLATION CITED:	Criminal Appeal Act 1912 Drug Court Act 1998
CASES CITED:	Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
DECISION:	Refer to paragraphs 36-41

IN THE COURT OF

CRIMINAL APPEAL

60247/99

SMART AJ

Friday, 11 August 2000

REGINA v WAYNE RONALD McCREA

1   Wayne Ronald McCrea appeals against sentences imposed upon him by the Drug Court pursuant to the Drug Court Act 1998. As this is the first appeal of a person so sentenced to the Court of Criminal Appeal it is necessary to summarise briefly the provisions of the Drug Court Act 1998 and those of the Criminal Appeal Act 1912 which govern the situation.

2   The stated object of the Drug Court Act 1998 is "to reduce the level of criminal activity that results from drug dependency.” By s. 6 of the Act courts can refer an alleged offender to the Drug Court. Section 7 (2) enables the Drug Court to convict and sentence a person who has pleaded guilty to the offence for which the person has been referred if and only if it is satisfied of five nominated conditions. In broad terms the person must be an eligible person and it must be appropriate for that person to participate in a program under the Drug Court Act 1998.

3   Section 7 (3) provides that on or within 14 days after sentencing, the Drug Court must make an order imposing on the person the conditions that the person has accepted and must make an order suspending execution of the sentence for the duration of the person's program. The program sets out the drug rehabilitation treatment which the person sentenced must undergo.

4 Section 7 (4) provides that a person, who is convicted and sentenced by the Drug Court under s. 7 with respect to an offence for which the person has been referred to the Drug Court, may at the same time be convicted and sentenced for any other offence to which he or she has pleaded guilty. Under s. 9 the Drug Court may vary a drug offender’s program. 5 Section 12 provides that on terminating a drug offender’s program the Drug Court must reconsider the drug offender’s initial sentence and impose a final sentence. Section 12 (2) to (4) provide:

"(2) In reconsidering a drug offender's initial sentence, the Drug Court must take into consideration:
(a) the nature of the drug offender's participation in his or her program, and
(b) any sanctions that have been imposed on the drug offender during the program, and
(c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment:
(i) under the sentence, or
(ii) under the condition of the program arising under section 8A.
(3) After considering a drug offender's initial sentence, the Drug Court is to determine the drug offender's final sentence:
(a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the original sentence related, or
(b) by making an order confirming the original sentence.
(4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence."

6   I was informed by counsel for both parties that if a drug offender adheres to his drug program, rehabilitates himself and does not commit any further offences it is the usual practice of the Drug Court when reconsidering a drug offender's initial sentence to vacate any term of imprisonment and to substitute as the final sentence a recognisance requiring the offender to be of good behaviour and to comply with the conditions imposed by the Drug Court.

7 Section 5AF of the Criminal Appeal Act 1912 provides:

"(1) Section 5AA applies to and in respect of a person convicted of an offence by the Drug Court in the exercise of its jurisdiction under Part 2 of the Drug Court Act 1998 (in relation only to a final sentence determined by the Court under section 12 of that Act) in the same way as it applies to a person referred to in section 5AA(1).
(2) For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the Drug Court.
(3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct."

8   Section 5AA relevantly provides:

"(1) A person:
(a) convicted of an offence; or
(b) against whom an order to pay any costs is made by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.
…
(3) Any such appeal is to be by way of rehearing on the evidence ("the original evidence"), if any, given in the proceedings before the Supreme Court in its summary jurisdiction.
(3A) The Court of Criminal Appeal may however give leave to adduce fresh, additional or substituted evidence but only if the court is satisfied that there are special grounds for doing so. If the court does give leave, the appeal is to be by way of rehearing on the original evidence and on any fresh, additional or substituted evidence so adduced.
(4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal.
…

9   The nature of the rehearing under section 5AA is a rehearing on the evidence before the Drug Court along with any additional or substituted evidence admitted by the Court of Criminal Appeal: Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683 especially at 692.

10   In the present case the appellant has sought to lead additional evidence on the hearing of his appeal and contends that there are special grounds which would justify the Court giving such leave. In 1994 s. 5AA (3) was amended to its present form and s. 3A was inserted. Previously, there was no requirement that special grounds must be shown before leave was granted to adduce fresh evidence.

11   Before turning to the question of the admission of fresh evidence it is necessary to refer to the facts. Of the offences committed by McCrea one was a driving offence and on 2 March 1999 a sentence for the driving offence was imposed. In relation to the other offences, namely, take and drive conveyance (count 1), possess an implement to drive a vehicle without the consent of the owner (count 2) and possess an implement capable of being used to drive a vehicle (count 4) sentences were imposed and suspended pursuant to s. 7 (2) of the Drug Court Act 1998.

12   The appellant entered into a drug program designed to reduce and hopefully eliminate his dependency on drugs thereby bringing about his rehabilitation in respect of his drug habits. Initially, the appellant performed well and seemed to be on the path of rehabilitation. However, he defaulted and his Drug Court program was terminated.

13 The judge then proceeded to impose a final sentence pursuant to s 12 of the Drug Court Act. She varied one of the sentences which had previously been imposed and suspended. In imposing the sentences the judge took into account that the appellant had spent 3 weeks in custody because of his breaches of the Drug Court program. The final sentences imposed by the Judge pursuant to s. 12 were:

Count 1: Take and drive conveyance - minimum term of imprisonment 9 months to commence on 6 May 1999 with an additional term of 3 months 1 week.

Count 2: Possess an implement to drive a vehicle without consent of owner additional term of 6 months imprisonment to commence on 6 May 1999.

Count 4: Possess an implement capable of being used to drive a vehicle - fixed term of 4 months imprisonment to commence on 6 May 1999.

14   The appellant was born on 21 July 1965. Unfortunately he had a long record which included many drug offences, dishonesty offences, driving offences, escape from lawful custody and breaches of recognisance.

15   It had been hoped that if the appellant had successfully completed his program his drug problems which seem to lie at the root of so much of his crime would be either eliminated or substantially reduced.

16   On the hearing of the appeal the appellant sought leave to read his affidavit of 20 July 2000 and thereby have it admitted in evidence. The affidavit discloses that on 26 May 1999 this Court granted the appellant bail with a condition that he enter into a drug rehabilitation program at Adele House.

17   He underwent a detoxification program between 26 and 29 May 1999 and then entered Adele house where he remained for nine and a half months. He complied with all the requirements of the live-in program of Adele House, learning new life skills. Adele House has attested that the appellant successfully completed his drug rehabilitation program.

18   The program manager of that institution has stated that the appellant has made a remarkable turn around with his life and these changes were itemised:

"* remains drug free.
* gained employment.
* built a better relationship with his mother and daughter.
* continues to attend narcotics anonymous meetings
* makes time for residents at Adele House as well as doing odd jobs around the unit as a community service.”

19   The evidence discloses a satisfactory life-style on the appellant’s part since leaving Adele House. He has secured employment. He is an active member and supporter of Sheridan Sharks Rugby League Football Club and there is a letter of testimony from a committee member of the club. The club provides both active sport and social activities.

20   In sentencing the appellant the judge stated "... there is a prospect of him being able to rehabilitate himself. Despite the fact that I think there is no prospect now I believe there may be a prospect in the future... "

21   Within three weeks of those remarks being made the appellant had embarked upon drug rehabilitation. The Crown did not dispute that the evidence sought to be adduced had significant probative value and brought the situation up to date.

22   The Crown correctly accepted that the additional evidence as to the appellant’s rehabilitation was impressive. It is a great pity that the appellant left it until after the final sentence to embark upon serious rehabilitation and did not take advantage of the earlier opportunity given to him by the reference to the Drug Court and the suspension of the sentences on 2 March 1999 with the imposition and acceptance of a drug program at that time.

23 The Crown submitted that the appellant had not established special grounds justifying the admission of the evidence. It submitted that the legislation did not envisage the appellant being given endless chances or as it was colloquially put in discussion “a third bite of the cherry.” The scheme of the legislation was that the appellant only received the benefits of the Drug Court Act if the appellant embarked upon and successfully completed his Drug Court program.

24   I am conscious of the fact that the appellant is seeking an additional indulgence and that he has created the circumstances on which he relies to constitute a special ground. He has made good use of the grant of bail to him on the 26 May 1999.

25   There are some additional matters to be noted. This appeal is being heard some 15 and a half months after the judge passed her final sentence. It is an appeal by way of rehearing with the limitations earlier mentioned but after such a lapse of time it is not unlikely that there will have been changes of some moment in the appellant’s position. It is far from ideal for an appeal of this nature to be determined on materials which are out of date. Curiously, the object of the Drug Court program and the Drug Court Act has been achieved in that the appellant has become substantially rehabilitated in respect of his drug habit.

26   The Crown submitted that the word “special” in the phrase “special grounds” bore its ordinary meaning. It relied on these meanings of the word “special” in the Macquarie dictionary:

“6. Distinguished or different from what is ordinary or usual: a special occasion.
7. extraordinary; exceptional; exceptional in amount or degree; especial: special importance.”

27   The Shorter Oxford English Dictionary, 3rd edition contains this meaning of special:

“7. Law. Used to denote particular or distinctive instances or cases of the thing, action or person in question…”

28 Counsel advised that their researches had not located any case which was directly in point in the criminal field and I am not aware of any. However, they did refer to s. 75A of the Supreme Court Act 1970 dealing with civil appeals and the reference in s. 75A (8) prohibiting the receipt of further evidence except on special grounds. 29 Regard must be had to the nature of the appeal and the context in which it arises. It is an appeal from the Drug Court to which matters may be referred from the Local Court and the District Court. The purpose of the Drug Court with its special regime is, upon entry of a plea of guilty to assist in eliminating drug dependence. Matters will usually come before this Court where the Drug Court program has not been effective leading to a final sentence with a custodial element. The right of appeal by way of rehearing is greater than that which usually applies from the District Court to this Court after conviction and sentence but less than that which applies from a Local Court to the District Court (hearing de novo). Care must be taken in interpreting "special grounds" not to impose restrictions which would not apply to a sentence appeal from the District Court to this Court. There are many well recognised grounds on which evidence is admitted on sentence appeals. 30 It is not possible to give a comprehensive definition of “special grounds”. Before evidence can be admitted on this basis it must have significant probative value, that is, it must be such that its admission may well affect the ultimate decision reached. The test of “special grounds” will be satisfied if the judge has made a material error in sentencing or if the basis on which the judge proceeded is shown to have been wrong in a material respect or if the rejection of the proposed further evidence would affront common sense or a sense of justice. Other special grounds would be the supply of incorrect information by the Crown which is material, or the supply of incorrect information by others, for example, a hospital or an expert or a government service. In some circumstances the withholding of relevant material may constitute a special ground as may prosecutorial misconduct. 31 Another example would be the provision of assistance to the authorities after sentencing and prior to the rehearing. This would also include the case where evidence as to the full assistance given did not come to hand until after the sentencing. The custodial conditions may have changed significantly for the worse or there may have been serious assaults upon the appellant or there may be a serious risk of such assaults or serious health issues may have arisen. In the case of some of the examples given a question of degree will be involved. The phrase "special grounds" in the context of an appeal from the Drug Court is not rigid or inflexible. Other examples of special grounds will arise. If the rejection of the evidence may lead to a miscarriage of justice that will usually be regarded as a special ground justifying the admission of the evidence. 32 There is an alternate approach. There is no sufficient reason to suppose that the usual principles as to the admission of further evidence on the hearing of sentence appeals do not apply. Some of the examples given would fall within those principles. They too include the principle that evidence will be admitted where a refusal to admit may result in a miscarriage of justice. The examples given and other instances which do not fall within the usual principles and which amount to special grounds would be admissible on that basis. In practice it is not necessary to pursue the distinction. This is an area in which flexibility should be maintained and rigidity avoided. 33 In the present case it is the combination of factors which amount to special grounds. The judge's findings as to rehabilitation proved incorrect. It was about to occur. The appellant was granted bail so that he could enter upon rehabilitation treatment and did so successfully. He is continuing with his rehabilitation. Having been granted the bail mentioned it would be anomalous not to take into account what has occurred. There has been a delay of fourteen and a half months between the date of the final sentence and the hearing of the appeal, much of which was probably due to the grant of bail. Over that period there has been such a marked change in the appellant’s position. It would be artificial, incorrect and lacking in common sense not to take that beneficial change into account. The critical nature and weight of the further evidence lies in this. If it were rejected the appeal would fail. With its admission the appeal succeeds. On the hearing of the appeal I admitted the further evidence on the basis that there were special grounds for its admission. 34 The appellant appears to have changed direction and to have passed the cross roads. It is not uncommon for this to happen with frequent offenders during their mid thirties. The appellant now appears to be venturing down the path of rehabilitation and useful endeavour. No sufficiently good point would be served by sending him to gaol again. However, it is desirable that the appellant fully appreciate the seriousness of his offences and that he will be returned to gaol if he does not comply with the terms of his suspended sentence. 35 The Crown contended that this Court lacked the power to impose a suspended sentence. It relied on s. 5AA (4) of the Criminal Appeal Act 1912 which provides that this Court may "make any determination that the [Drug Court] could have made on the evidence heard on the appeal. Emphasis was placed on the word "have" in the phrase "could have made". I took the view that the section had an ambulatory effect and that the correct time to assess whether the Drug Court could have imposed a suspended sentence was at the time of the rehearing and not the time of imposition of the final sentence by it. It was not until the rehearing that the decisive evidence was received. The appellant was prepared to accept a suspended sentence and did not embrace the construction propounded by the Crown. In my view the Crown's construction is incorrect. 36 For these reasons, at the conclusion of the hearing on 28 July 2000 I made these orders: 37 Appeals against sentence allowed on each of counts 1 (take and drive conveyance), count 2 (possess an implement to drive a vehicle without consent of owner) and count 4 (possess an implement capable of being used to drive a vehicle). 38 Sentences quashed. In lieu of the sentences imposed the appellant Wayne Ronald McCrea is sentenced as follows: 39 (a) On count 1 to imprisonment for 11 months 2 weeks (14 days) to commence on 28 July 2000. The execution of the sentence is suspended for 11 months 2 weeks. It is directed that the appellant be released from custody on condition that he enter into a good behaviour bond for 11 months 2 weeks. 40 (b) On count 2 to imprisonment for 6 months to commence on 28 July 2000. The execution of the sentence is suspended for 6 months. It is directed that the appellant be released from custody on condition that he enter into a good behaviour bond for 6 months; and 41 (c) On count 4 to imprisonment for 4 months to commence on 28 July 2000. The execution of the sentence is suspended for 4 months. It is directed that the appellant be released from custody on condition that he enter into a good behaviour bond for 4 months.

oOo