R v White

[2003] NSWCCA 88

CITATION:	R v. White [2003] NSWCCA 88
HEARING DATE(S):	Tuesday 25 March 2003
JUDGMENT DATE:	25 March 2003
JUDGMENT OF:	Studdert J at 1, 29; Smart AJ at 2
DECISION:	Leave to appeal granted; Appeal dismissed
CATCHWORDS:	Break, enter and steal offences - sentence not excessive - no question of principle
PARTIES :	Regina Michael White
FILE NUMBER(S):	CCA 60044/02
COUNSEL:	Applicant: In Person Crown: G.I.O. Rowling
SOLICITORS:	Applicant: In person Crown: S. E. O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/21/0253
LOWER COURT JUDICIAL OFFICER :	Nield J

60044/02

Studdert J

Smart AJ

Tuesday 25 March 2003

R v. Michael Scott WHITE

Judgment

I ask Smart AJ to give the first judgment.

Michael Scott White seeks leave to appeal against the length of sentences imposed upon him in the District Court consequent upon his pleas of guilty, namely concurrent sentences of imprisonment of five years three months with a non-parole period of three years three months for each of two offences of break, enter and steal and a concurrent sentence of a fixed term of twelve months for the offence of take and drive a conveyance without consent of the owner.

3. The Court took into account three further offences, namely possess prohibited drug, enter enclosed lands and possess implements capable of being used to enter and drive a conveyance. All the offences occurred on the one day.

4. On about 28 May 2001 the applicant took and drove a motor vehicle belonging to another in circumstances not revealed in the evidence. On subsequent examination of the vehicle, the police found inside it two yellow handled screw drivers, two sets of car keys and a nail file, which was jammed into the ignition barrel of the vehicle.

5. About 11.50 am on that day the applicant pulled the vehicle up outside unit 2/12 Cameron Street, Lidcombe. After an initial reconnaissance of the block, the applicant knocked on the door of unit 2. On receiving no response he kicked open the front door, entered the unit and removed items from the unit and put them in the stolen car. The applicant made several trips from the unit to the car.

6. The applicant also broke into unit 4/17 St Johns Road, Auburn, a townhouse, damaging the front door around the lock and the timber surrounding the lock. The door leading into the garage had been forced open and the metal lock damaged. There was a large hole in the wall next to the door. The roller door of the garage had been forced open. There were a number of items missing from the house.

7. Neither of the homes was vandalised and nobody was threatened or injured. When the police noticed the applicant in the stolen vehicle driving along Albert Street, Lidcombe, they attempted to stop it. The applicant slowed down the vehicle, jumped out and ran off, allowing the vehicle to roll into a tree on the footpath. The police chased the applicant on foot through the rear yards of houses on Oxford Street, Lidcombe. He hid under a house and eventually he was located with the aid of a sniffer dog and arrested. All the property stolen was recovered.

8. The applicant was born on 24 February 1971. He comes from a dysfunctional family, his upbringing was disturbed and unstable and he had an unfortunate childhood in the teenage years, being introduced to drugs at an early age.

9. His lengthy criminal history begins when he was aged fifteen. Since then he has committed many offences - about ninety two according to the judge. More than half of them have involved dishonesty and many of the offences have involved breaking and entering into homes.

10. The applicant has been on drugs of addiction for more than half his life. He commenced with cannabis and progressed to heroin, which he used for only a short time and then moved to amphetamine, which became his drug of choice. He was using amphetamine at the time of the offence but the judge was unable to determine whether he was under the influence of amphetamine when he committed the offences.

11. The applicant was released from prison about 18 September 2000 and returned to using amphetamine within two or three days. The judge noted that the applicant was on parole at the time of the offences. The applicant entered pleas of guilty at the earliest opportunity and the judge gave him a discount of twenty five per cent on that account. The judge found that the applicant was not contrite. In his evidence before the judge and in his submissions to this Court the applicant stressed that when he was released from Junee Correctional Centre in September 2000 he was not provided with a necessary psychiatric medicine, Dexamphetamine, which he had been receiving in custody for the treatment of adult ADHD. His parole conditions, he insisted, required him to take that medication. He said that he had significant difficulty in coping without that medication.

12. Mr White has referred us to a parole report of 30 June 2000 dealing with whether Mr White should be released on parole. That report notes that Mr White was prescribed Dexamphetamine for his ADHD and continues,

“The consulting psychiatrist will refer Mr White to a community doctor where he can receive his medication once released.”

13. Mr White’s release to parole was recommended conditional upon his undertaking psychological or psychiatric treatment and alcohol and other drug counselling as deemed necessary, and that he remain on medication for his attention deficit hyperactivity disorder.

14. It is a matter of much regret that when the applicant was released he apparently was not given any Dexamphetamine, nor the name of the doctor to whom he should report.

15. He has informed us that on the day of his release from Junee Correctional Centre, that is, just after midnight of the previous day, he was driven to Sydney by his mother and that he attended on his parole officer, Mr Iam. Mr Iam was unable to refer the applicant to a community doctor and suggested that he contact the Mental Health Department at Parramatta. Mr White did so. That department could not provide specific help and referred him to a clinic at Westmead Hospital. Upon enquiry, Mr White discovered that clinic had been closed.

16. The reference to the clinic was found in a pamphlet given to Mr White by the parole officer. The evidence on this point is not completely clear. Mr White made further enquiries and ultimately was given the name of Dr Terry Cook. However, Dr Cook was not able to see him, we were told, for approximately a fortnight. In his evidence before Nield DCJ, the applicant said that it was about three and a half weeks before he saw Dr Cook.

17. Be that as it may, it is apparent that in the meantime the applicant had returned from an early date to using amphetamines. Mr White attributes the failure to give him Dexamphetamine and refer him immediately to a doctor as leading to his going back onto amphetamines. One of the difficulties is that after the applicant saw Dr Cook, he continued to use amphetamine and to commit offences. These offences did not occur until May 2001, approximately eight months after the applicant’s release and long after he had commenced to see Dr Cook.

18. It is a very long bow for him to suggest that the failures mentioned led him to commit or contributed to his committing the offences with which this Court is now concerned.

19. The applicant complains that the judge did not take into account the mental health issues which affected him and was not aware of the timeframe in which it took him to obtain appropriate medication. Mr White did give evidence before Nield DCJ and the problem was exposed but the judge did not think it had much to do with the commission of offences in May 2001.

20. The applicant complained that Nield DCJ did not take into account the time that he served on remand waiting to be sentenced. He pointed out that he pleaded guilty at the very first opportunity in the Local Court. The applicant also complained that the judge did not take into account that he missed the Drug Court ballot on some four occasions.

21. The difficulty is that the applicant was serving the balance of his earlier sentence, his parole having been revoked by the Parole Board. In those circumstances it was a matter for the judge to determine when the sentence should date from.

22. The balance of the sentence was not due to expire until 18 October 2003 and as the judge’s sentence is dated from 1 February 2002, there is an overlap of twenty months and seventeen days.

23. This is the practical effect of merging portion of the time spent serving the balance of his earlier sentence and portion of this sentence and reducing the custodial period overall. The judge recorded that the applicant was on protection because of his tendency to self harm.

24. The applicant had anticipated that he might be permitted for part of his sentence to go to the William Booth Rehabilitation Centre. That followed from the recommendations made in the pre-sentence report and what he understood to be the attitude of some of the officers of the Probation and Parole Service and the Parole Board.

25. However, it was entirely a matter within the judge’s discretion whether to release the applicant into the William Booth Rehabilitation Centre after he had served a reduced portion of his custodial sentence. The judge, in view of the applicant’s record, did not believe that such a course was warranted or worthwhile.

26. The applicant also complained that there had been errors made in the pre-sentence report. It is not necessary to set these out in any detail. However, in my opinion, none of the alleged errors would have any bearing on the ultimate sentence that the applicant received from the judge, given the judge’s approach to the applicant’s criminal history and his early return to amphetamines after his release in September 2000.

27. The judge was not bound to accede to the suggestion that there should be some form of remand while the applicant undertook rehabilitation. As was pointed out, the offences were committed while the applicant was on parole. They were very serious offences committed in circumstances where the applicant’s record did not entitle him to any leniency.

28. While it is appropriate to grant leave to appeal because of the circumstances in which the applicant was released from prison, I am of the opinion that the appeal against sentence should be dismissed.

I agree with the orders proposed by Smart AJ and the reasons expressed for proposing those orders. Accordingly, the orders of the Court are:

1. Leave to appeal granted.

2. Appeal dismissed.

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Last Modified: 11/14/2003