R v Porteous

Case [2005] NSWCCA 115

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v John Gordon Porteous [2005]  NSWCCA 115

FILE NUMBER(S):
2005/41

HEARING DATE(S):               31 March 2005

JUDGMENT DATE: 06/04/2005

PARTIES:
Regina (Respondent)
John Gordon Porteous (Applicant)

JUDGMENT OF:       Giles JA Hoeben J Johnson J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/31/0480

LOWER COURT JUDICIAL OFFICER:     Charteris DCJ

COUNSEL:
Mr S Corish (for the Applicant)
Ms D Woodburne (for the Respondent)

SOLICITORS:
Mr S E O'Connor (for the Applicant)
Mr S Kavanagh (for the Respondent)

CATCHWORDS:
SENTENCING - break, enter and commit serious indictable offence in circumstances of aggravation - extent of discount for early plea of guilty and finding of remorse - determination of objective seriousness of offence - use of pre-2003 statistics in sentencing for standard non-parole period offence.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
1. Leave to appeal granted as to sentence for the offence under s.112(2) Crimes Act 1900
2. leave to appeal refused as to sentence for the offence under s.154A Crimes Act 1900
3. appeal allowed with respect to the offence under s.112(2) and the sentence quashed
4. sentenced for the s.112(2) offence to imprisonment comprising a non-parole period of three years and nine months commencing on 8 November 2003 and to expire on 7 August 2007 and a balance of term of two years commencing on 8 August 2007 and to expire on 7 August 2009
5. the recommendations to prison authorities made by Charteris DCJ on 24 June 2004 are confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/41

GILES JA
HOEBEN J
JOHNSON J

6 April 2005

REGINA v JOHN GORDON PORTEOUS

Judgment

  1. Giles JA:  I agree with Johnson J.

  2. Hoeben J:  I agree with Johnson J.

  3. Johnson J:  The Applicant, John Gordon Porteous, seeks leave to appeal with respect to sentences imposed by his Honour Judge Charteris SC at the Port Macquarie District Court on 24 June 2004 for an offence of break, enter and commit a serious indictable offence, namely larceny, in circumstances of aggravation, to wit deprivation of liberty under s.112(2) Crimes Act 1900 and for an offence of taking and driving a conveyance without consent under s.154A Crimes Act 1900. The maximum penalty for an offence under s.112(2) is imprisonment for 20 years and the maximum penalty for an offence under s.154A is imprisonment for five years.

  4. As the offence under s.112(2) was committed after 1 February 2003, it is included in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 and a standard non-parole period of five years is specified for the offence. 

  5. Upon the count under s.112(2), his Honour sentenced the Applicant to imprisonment for a period of six years and nine months to commence on 8 November 2003 and to expire on 7 August 2010 with a non-parole period of three years and nine months to commence on 8 November 2003 and to expire on 7 August 2007. Upon the s.154A count, his…

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AGLC
R v Porteous [2005] NSWCCA 115
Case
[2005] NSWCCA 115
Decision Date

CaseChat Overview and Summary

The case of R v Porteous involved the sentencing of the Applicant for a serious indictable offence. The Applicant, who had a history of substance abuse and mental health issues, pleaded guilty to the offence. The District Court judge, Charteris DCJ, imposed a sentence of six years and nine months imprisonment, with a non-parole period of three years and nine months. The Applicant appealed against his sentence, arguing that the sentence was excessive and that the sentencing judge had not properly considered the mitigating factors of his early plea of guilty and remorse. The appeal was heard by the Supreme Court, which found that the sentence was appropriate but that the head sentence should be reduced to five years and nine months.

The legal issues before the Supreme Court were whether the sentence imposed by the District Court was excessive and whether the sentencing judge had properly considered the mitigating factors of the Applicant's early plea of guilty and remorse. The Supreme Court held that the sentence was appropriate but that the head sentence should be reduced to five years and nine months. The Supreme Court also held that the sentencing judge had properly considered the mitigating factors of the Applicant's early plea of guilty and remorse.

In reaching its decision, the Supreme Court considered the objective seriousness of the offence, the Applicant's background and circumstances, and the mitigating factors of his early plea of guilty and remorse. The Supreme Court noted that the Applicant had a history of substance abuse and mental health issues, which had contributed to his offending behaviour. However, the Supreme Court also noted that the Applicant had expressed genuine remorse for his actions and had pleaded guilty at the earliest opportunity. The Supreme Court held that the mitigating factors of the Applicant's early plea of guilty and remorse warranted a reduction in the head sentence but that the non-parole period should remain unchanged.

The Supreme Court made several orders in relation to the Applicant's appeal. The Supreme Court granted leave to appeal as to the sentence for the offence under s.112(2) Crimes Act 1900 but refused leave to appeal as to the sentence for the offence under s.154A Crimes Act 1900. The Supreme Court allowed the appeal with respect to the offence under s.112(2) and quashed the sentence imposed by the District Court. The Supreme Court imposed a new sentence of imprisonment comprising a non-parole period of three years and nine months commencing on 8 November 2003 and to expire on 7 August 2007 and a balance of term of two years commencing on 8 August 2007 and to expire on 7 August 2009. The Supreme Court also confirmed the recommendations to prison authorities made by Charteris DCJ on 24 June 2004.

Orders

Orders of the court

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Background

Background to the litigation

The sentencing judge accepted that, although the Applicant had taken amphetamines on the day of the offence, the level of his intoxication was not great. His Honour accepted that the Applicant was “very much in a depressed state when he decided to undertake this offence”.The Applicant’s Background The Applicant was born on 17 October 1958 and was aged 45 years at the time of this offence. Upon leaving school, he had been employed by Telstra in a technical position for some 26 years. He was retrenched in 2000. He did not cope well with retrenchment. The Applicant gave evidence in the sentencing proceedings in the District Court as did his sister, Ms Sandra Jones. The Applicant commenced using amphetamines and cannabis at the age of 43, shortly after his retrenchment. Charteris DCJ formed the view that the Applicant “continues to lack the skills to get himself out of the rut that he found himself in by his loss of employment”. During his evidence in the District Court, the Applicant expressed regret and shame for the offence. Charteris DCJ accepted that the Applicant was being honest with the Court when giving that evidence. A report dated 5 May 2004 from a psychologist, Mr Peter Ashkar, was tendered in the Applicant’s case in the District Court. Mr Ashkar referred to the Applicant’s use of amphetamines and cannabis following his retrenchment. Symptoms of depression were noticed following the Applicant’s retrenchment and he was prescribed medication to help with sleep problems. Mr Ashkar considered that the offending behaviour was precipitated by psychosocial stress flowing from his retrenchment, the Applicant’s long-term unemployment and his financial difficulty. That stress led to a disturbance of mood, anxiety and depression, which led to the Applicant engaging in substance abuse which in turn gave rise to anger. It was the view of Mr Ashkar that substance abuse was a maladaptive attempt by the Applicant at emotional regulation. It was Mr Ashkar’s view that the Applicant did not have an entrenched pattern of offending behaviour. He recommended that an anger-management programme be provided to the Applicant together with a substance abuse prevention programme. The sentencing judge generally accepted the opinion of Mr Ashkar and made recommendations to the prison authorities in accordance with Mr Ashkar’s views. The Applicant has a prior criminal history. In 1978, he was convicted of driving with the prescribed concentration of alcohol. In 1994, he was convicted of aiding and abetting the commission of a high-range prescribed concentration of alcohol offence. In the same year, he was fined for possession of a firearm whilst unlicensed. In 1998, he was fined for common assault and malicious damage to property. The Applicant gave evidence before the sentencing judge that this offence related to him being drunk at a hotel and his damaging a door of the hotel. In the same year, he came to attention for assault and was placed on a bond for two years. The Applicant gave evidence that this offence, together with two offences in 1999 involving contravention of apprehended domestic violence orders, related to an unhappy domestic situation with his then girlfriend. On 23 September 2002, the Applicant was placed on a two-year good behaviour bond and was fined for larceny, possession of ammunition without holding a licence and possession of a prohibited drug. The sentencing judge concluded (remarks on sentence, page 7):“It is a trivial record in the scheme of things and not consistent with someone embarking upon this offence”.It should be observed that the Applicant was subject to a bond at the time of the present offences. His Honour did not refer to this fact in the remarks on sentence by way of reference to s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999 or otherwise, although there was a passing reference in the Applicant’s evidence to the offences which gave rise to the bond (Transcript, page 14).Determination of Objective Seriousness of Offence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would reject the second ground of appeal.Conclusion In my view, the first ground of appeal has been established with respect to the head sentence, with the result that a head sentence of five years nine months imprisonment ought be imposed in place of six years and nine months imprisonment. However, I do not consider that any reduction in the non-parole period ought be made in this case. In my opinion, a non-parole period of three years and nine months represents the minimum term of imprisonment which ought be served by the Applicant for this objectively serious offence: Power v The Queen (1974) 131 CLR 623 at 628. The sentencing judge’s finding as to the presence of special circumstances was appropriate. A non-parole period of three years and nine months represents 65.2% of a head sentence of five years nine months. This remains a significant variation of the statutory proportion having regard to the finding of special circumstances. I propose the following orders:(a)Leave to appeal granted as to the sentence for the offence under s.112(2) Crimes Act 1900;(b)leave to appeal refused as to the sentence for the offence under s.154A Crimes Act 1900;(c)appeal allowed with respect to the offence under s.112(2) and the sentence quashed;(d)sentence for the s.112(2) offence to imprisonment comprising a non-parole period of three years and nine months commencing on 8 November 2003 and to expire on 7 August 2007 and a balance of term of two years commencing on 8 August 2007 and to expire on 7 August 2009;(e)the recommendations to prison authorities made by Charteris DCJ on 24 June 2004 are confirmed.

Ratio Decidendi

Legal Principle Established

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