R v Ravet - [2001] NSWCCA 535

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Shane John Ravet [2001] NSWCCA 535

FILE NUMBER(S):
60658/01

HEARING DATE(S): 6 December 2001

JUDGMENT DATE: 06/12/2001

PARTIES:
Regina - Appellant - Crown
Shane John Ravet - Respondent

JUDGMENT OF: Stein JA Hidden J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0376
01/11/0377
01/11/0807

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:
L M B Lamprati - Appellant - Crown
C B Craigie SC - Respondent

SOLICITORS:
Crown Solicitors Office - Appellant - Crown
Legal Aid Commission of NSW - Respondent

CATCHWORDS:
CRIMINAL LAW - Crown appeal against sentence - break, enter and steal - offence committed while on parole - objective seriousness of offence - deterrance - drug addiction - rehabilitation program
CRIMINAL LAW - appeal - double jeopardy - appellate discretion - ND

LEGISLATION CITED:
Criminal Appeal Act 1912
Justices Act 1902

DECISION:
Appeal dismissed

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60658/01

STEIN JA
HIDDEN J
KIRBY J

Thursday, 6 December 2001

REGINA v Shane John RAVET

Judgment

STEIN JA: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed on the respondent, Shane John Ravet, by Judge Williams in the District Court on 10 August 2001.
His Honour sentenced Mr Ravet on two counts. He had pleaded guilty to one count of break, enter and steal committed on 31 May 2000 (s 112 (1) Crimes Act 1900) and one count of break and enter with intent to commit a felony (s 113(1)) on 20 December 2000.
The respondent had also pleaded guilty before a local court to a break, enter and steal offence committed between 25 and 26 March 2000 and was committed for sentence pursuant to s 51A of the Justices Act 1902. This matter was also before his Honour on 10 August 2001.
With respect to each count on the indictment, his Honour sentenced the respondent to 2 years imprisonment to date from 20 December 2000 when he was taken into custody, with a non-parole period of 12 months to expire on 19 December 2001.
On the s 51A matter, his Honour sentenced the respondent to a section 9 bond to be of good behaviour for 2 years from 10 August 2001.
When ordering the release of the respondent to parole on 19 December 2001 his Honour said that it was on condition that he accept the supervision of the Probation and Parole Service, and that such supervision may include a direction to attend a residential drug rehabilitation programme. Similar conditions were also placed upon the s 9 bond.
His Honour described the offences as ‘run-of-the-mill break and enters’ of the shops after they had closed. Indeed they were. The offence of 31 May 2000 involved forcing a roller shutter door of a womens’ fashion shop at the Ashfield Mall. $200 disappeared from the cash register. The respondent left his fingerprints as a calling card.
The offence on 20 December 2000 was similar and involved a shoe store at the Mid City Centre in George Street, Sydney. On this occasion a security roller door was forced and the respondent apprehended by a security officer inside the premises. He was arrested by police and made verbal admissions.
The s 51A offence was from a menswear shop in a Chatswood shopping centre, again in similar circumstances. He left the store with a suit, tie and shirt and again, left his fingerprints on the roller shutter, as well as inside the store.
At the time of the offences the respondent was on parole with respect to a sentence for robbery in company, for which he had been convicted on 13 March 1998 and sentenced to 3 ½ years imprisonment. Parole was revoked in August 2000.
The respondent is 29 years of age, and has a lengthy criminal history dating back to 1987. This date appears to coincide with his commencement of serious drug use, mainly heroin. His offences have principally involved dishonesty but also include drug and assault matters and one escape from lawful custody which, if my recollection serves me correctly, he appealed to the Court of Criminal Appeal, and the appeal was allowed, and he was re-sentenced.
It was estimated in evidence that the respondent has spent 75% of his last 14 years in juvenile institutions and prison. His longest period in the community appears to have been 15 months when he was on parole and committed the subject offences.
His Honour recorded the respondent’s personal circumstances in giving his reasons on sentence. The respondent’s parents separated when he was 4 years old and I have to recall that is the third matter I have heard in two days on the Court of Criminal Appeal this week when parents had separated when a child was four.
Reverting to the facts which his Honour recounted. Thereafter it appears that the respondent lived mainly with his grandmother, who is now 80 years of age. He has not seen his parents, or his brother, for 8 years.
The respondent had a long term relationship with a person who was also a drug user, and while on parole he had a relationship with a woman who did not use drugs. Unfortunately, this relationship broke down when the respondent resumed using heroin. He had apparently been drug free for about 6 months before that time.
The respondent left school at 14 years of age, although he returned for a brief period in which it seems he became involved in drug use. Shortly thereafter he abandoned his studies. The respondent’s work history has consisted of short term labouring jobs.
A pre-sentence report before his Honour concluded that the respondent was unsuitable for periodic detention, community service or a supervised bond, given his previous experiences with the Probation and Parole Service.
While in custody from 20 December 2000 to his sentencing in August 2001, it seems that the respondent ceased using illegal drugs and made good progress. He has been accepted as suitable for a rehabilitation programme at The Glen Rehabilitation Centre at Chittaway Point. This is scheduled to commence on 19 December 2001 when his parole would commence, that is, subject to this appeal.
Updating reports have been tendered to the Court which indicate that the respondent, who had not that long ago been diagnosed as having Attention Deficit Hyperactivity Disorder, has been making good progress while in gaol. He has completed a Life Management Stage 11 Programme and, according to Ms Mackie, his Drug Counsellor at the Lithgow Correctional Centre, has gained insight into his past self-defeating behaviour.
The respondent has successfully completed a 12 stage conflict resolution programme, as well as a number of horticultural courses. Ms Mackie says that it would be in the respondent’s best interests to progress to the Rehabilitation Centre to continue his motivation to remain drug free.
The respondent has only once before entered a residential drug rehabilitation programme, but it seems failed after only 6 weeks. I should mention that Ms Mackie, the drug counsellor, has had continuous contact with the respondent for a period of around three years, according to her reports.
Before his Honour the sentencing judge were a number of reports concerning the respondent, from his drug counsellor, a clinical psychologist, a psychiatrist and from the chaplain at Lithgow.
What I gain from this material, and from the respondent, is that at 29 years of age, with a lengthy criminal record, he appears to be at the crossroads. He could either relapse into drug abuse and criminal behaviour or turn the corner and end the cycle of drugs and crime.
The Director of Public Prosecutions submits that his Honour’s sentence failed to reflect the objective seriousness of the offences and allowed subjective factors to prevail. Further, that his Honour paid insufficient attention to a general and specific deterrence.
It is further submitted that his Honour did not make any findings of fact upon which to base his sentence. I do not accept this submission. The facts were before his Honour and the brief references made to the facts was sufficient in the circumstances. The offences were unremarkable and his Honour was right to refer to them as run-of-the-mill break and enters of shops after hours.
It is also submitted that his Honour fell into error by saying that the respondent’s problem was ‘principally medical rather than of a criminal nature’. This was a reference to the respondent’s drug addiction.
I do not see his Honour as stating more than the obvious. That is, unless the respondent was able to cease drug taking, he was likely to re-offend. To that extent his problem was a medical one. I do not see that his Honour’s observation meant that he treated the objective seriousness of the offences and the need for deterrence as of minor importance only or that he elevated rehabilitation to that of primary importance. His Honour properly acknowledged the seriousness of the offences and particularly because they were aggravated by their commission while on parole. Indeed, there is no doubt that this was a serious aggravating feature.

Arguably of more persuasion is the DPP’s criticism of his Honour in not differentiating between the sentences, which were for distinct offences, one more serious than the other. His Honour gave no reasons why equal sentences were imposed and whether any accumulation was appropriate or otherwise. However, given the simple facts of the offences, there was very little distinction between them and it was not inappropriate to impose equal sentences.
A further criticism is made of his Honour’s finding of the existence of special circumstances in relation to the judge’s mention of the respondent’s age (29 at sentencing). However, the Crown accepts that other valid grounds existed for the finding of special circumstances.
Nonetheless, the DPP submits that the backdating of the sentence and the allowance for special circumstances have resulted in a sentence of little punitive effect. It is submitted that because of the breach of parole, the backdating of the sentences to 20 December 2000 was in error. The backdating by his Honour is of concern to the Court but, for reasons which I will mention later, I do not accept that the backdating was impermissible, although it may be said to be most unusual in the circumstances of this case.
In summary, and relying on the reading of the whole of the judgment of his Honour, the Crown contends that the sentences are unjustifiably lenient and manifestly inadequate.
On behalf of the respondent, it is submitted that the serious circumstance of aggravation, that the offences were committed while the respondent was on parole, was sufficiently acknowledged by his Honour in the sentences because, absent that aggravating factor, the offences were likely to have been assessed at the lower end of the scale. For example, there was no high level of damage to the premises, nor significant property stolen. Further, it was unlikely that there would be any encounter with occupiers, employees or members of the public because the stores were closed at the time of the offences.
Even with offenders with an ‘appalling’ record of criminal activity, including offences committed while on parole, there may be circumstances where a sentencing judge may properly conclude (within his or her discretion) that an offender should be afforded a chance to break a cycle of offending and embark on a realistic rehabilitation programme. In R v Caridi (Unreported, NSWCCA, 3 December 1987) the Court comprised Street CJ and Hunt and Newman JJ and the appeal involved an imposition by a District Court judge of a 7 month non-parole period in relation to an offence of robbery being armed and in company. In giving his reasons the Chief Justice said:
The particular circumstance that led to his Honour passing what was on its face such a short sentence, and specifying such a short non-parole period, [7 months] was the degree of assistance that the respondent provided to the prosecuting authorities in relation to the identification of the other persons involved and his readiness to assist the prosecution of those others. That, coupled with a further consideration which the criminal courts have long recognised, resulted in the order that has been stated. The further consideration is that his Honour took the view that at the respondent’s present age, thirty-two, and with an earlier life which included quite serious criminal offences, a stage had been reached where a grant of leniency might be just sufficient to turn the respondent away from continued involvement in crime. That recognition by the criminal courts of a critical time, usually in the order of about thirty years of age, when otherwise hardened criminals may prove responsive to some degree of leniency – not a total absence of punishment but some degree of leniency – has been recognised both in this country and elsewhere and his Honour so regarded the present respondent.
So long as the circumstance of aggravation is reflected in the sentence, there is authority that a sentence may be backdated to the commencement of custody provided the circumstance is justified, rather than accumulated on the unexpired term of parole. See for example R v Kaiva and R v Webb (Unreported, NSWCCA, 9 November 1998). I do not accept that these cases establish any principle. Rather, they are examples that such a step may obviously be within a judge’s sentencing discretion if the circumstances warrant. It is accepted here that the effect of the backdating by his Honour leaves a very short sentence indeed and, on one view, that may be seen to be an error.
In R v Allpass (1994) 73 A Crim R 561 the High Court acknowledged that if the Court decides to re-sentence an offender, it will normally recognise the element of double jeopardy involved by imposing a sentence of somewhat less than it considers should have been imposed by the trial judge. Moreover, the appellate court retains an overriding discretion not to intervene even if it concludes that error has been shown.
In my opinion, double jeopardy plays an important part in this case because, notwithstanding the DPP’s reasonable promptitude in indicating its intention to appeal and giving Notice of Appeal on 28 September 2001, the respondent is close to being released to parole. In fact, in only 13 days time on the19th December 2001.
The respondent has, on all accounts, been progressing well while in gaol. He is, according to those who have reported, demonstrated a commitment and motivation to rehabilitation which has never been present before. He has been assessed by The Glen Drug Rehabilitation Centre as suitable for its programme, which is a long-term one. The Programme Coordinator recommends that if the Court permits his attendance, he should be subject to supervision by the Probation and Parole Service and not be permitted to leave The Glen without the direction of the Service. If he leaves without permission or is discharged prematurely from the programme, the authorities will be notified by the Centre.
If the Court were to substitute a new sentence in lieu of his Honour’s, this would inflict a considerable hardship on the respondent, especially bearing in mind the closeness of his parole and his acceptance by The Glen. The impact on the respondent would be more considerable than perhaps is the usual case. In my view, particular significance should be given to the hardship which would be imposed on the respondent if he were to miss the opportunity of parole and admission to a long term residential drug rehabilitation programme. The progress which the respondent has achieved and was hoped for by his Honour, could be set at nought.
Without the significant element of double jeopardy and the evidence favourable to the respondent of his progress towards rehabilitation and the support he appears to be receiving in ridding his drug dependence, it is arguable that a longer sentence should be imposed. However, in the circumstances which I have discussed, I do not believe that the Court should intervene and re-sentence the respondent.
The appeal should be dismissed.
HIDDEN J: Clearly, it was open to his Honour to have dated the sentences passed upon the applicant from the date on which they were passed. They would then have been served partly cumulatively upon the balance of the sentence he was serving as a result of the revocation of his parole. That his Honour should have done so, in my view, was the Crown's strongest argument in this appeal notwithstanding the strides towards rehabilitation which the applicant had apparently begun at the time he appeared before his Honour.
It may well be that his Honour did fall into error in backdating the sentences in the way he did. However, I find it unnecessary to express any concluded view about that because, even if that were so, I am satisfied that the residual discretion of this Court demands that this appeal be dismissed, and I say so not only in the light of the material that was before his Honour but in the light of the fresh material which is now before this Court.

It is clearly in the community's interest at this stage that the respondent have the rehabilitative opportunities which are now available to him and available to him in the very immediate future.
I agree with the order proposed.
KIRBY J: I believe there was error. I believe that the sentence imposed was manifestly inadequate. It did not, in my view, reflect the objective seriousness of the offences with which the respondent was charged. The inadequacy principally arose through the backdating of the sentence to the date of the arrest. That, in my view, was inappropriate given that the respondent was then on parole. It had the effect, in my view, of rendering the non parole period inadequate. It was necessary that the non parole period should reflect “the minimum time that a judge determines justice requires that (the offender) must serve having regard to all the circumstances of the offence” (Deakin v The Queen (1984) 54 ALR 765 at 766; Bugmy v The Queen (1990) 169 CLR 525, per Dawson, Toohey, Gaudron JJ at 536).
However, as a matter of the overriding discretion, I am persuaded that this Court should not intervene for the reasons given by the presiding judge.
I therefore join in the orders that have been proposed.
STEIN JA: Accordingly the order of the Court is that the appeal is dismissed.

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LAST UPDATED: 19/12/2001