Regina v Beale
[2001] NSWCCA 261
•2 July 2001
CITATION: REGINA v BEALE [2001] NSWCCA 261 FILE NUMBER(S): CCA 60015/00 HEARING DATE(S): 2 July 2001 JUDGMENT DATE:
2 July 2001PARTIES :
Reginav
David Richard BEALEJUDGMENT OF: Adams J at 1; Smart AJ at 8
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 99/31/0370 & 99/11/0677 LOWER COURT JUDICIAL
OFFICER :Armitage DCJ
COUNSEL : Mr L M B Lamprati (Crown)
Ms R Burgess (Applicant)SOLICITORS: S E O'Connor (Crown)
D J Humphries (Applicant)LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Sharrett [1999] NSWCCA 209 DECISION: Leave to appeal granted, the appeal against a fixed term of two years' imprisonment in respect of the count of steal from the person be dismissed, the appeal against the sentence for break, enter and steal be quashed and in lieu thereof the applicant be sentenced to a term of three years commencing on 26 July 2000 with a non-parole period of 15 months commencing on 26 July 2000 and expiring on 25 October 2001. The applicant to be released on parole on 25 October 2001.
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL
ADAMS J
SMART AJ
MONDAY, 2 JULY 2001
1 ADAMS J: This is a case with a depressingly familiar history of an offender commencing a life of crime after becoming involved in drugs. The applicant, who is an Aboriginal person, had a promising career involving Aboriginal dance which was blasted by his drug habit that commenced in his late teens. He has, since that time, regrettably accumulated a large number of serious property offences.
2 Those which this Court is concerned with occurred in September and December of 1997. The former offence involved the breaking and entering into a house stealing a large amount of cash and property. The latter offence involved entering a supermarket, pushing the shop assistant in the chest violently, and stealing money from the till. He has been in custody charged with the latter offence - for reasons which I do not have to dilate on - since 27 July 2000, at that time serving a sentence which was imposed upon him by the Local Court for other crimes.
3 The learned sentencing judge considered, in light of the applicant's history and steps taken by him shortly before he came to sentence, that there was some significant prospect of rehabilitation.
4 The sentences passed on the applicant were, in respect of the offence of stealing from the person, a fixed term of two years' imprisonment to commence on 27 July 1999 and expire on 26 July 2001, and in respect of the breaking, entering and stealing, a minimum term of two years' imprisonment to commence on 26 July 2000 and expire on 25 July 2002 with an additional term of twelve months to commence on 26 July 2002 and expire on 25 July 2003.
5 It will be observed that in respect of the latter sentence (considered above), the additional term was significantly less than that which would have resulted from an application of what I might call the conventional statutory formula, an adjustment which would have been necessary, in my view, having regard to the partial accumulation of the sentences. However, in dealing with this matter, his Honour thought that there were special circumstances in addition to the accumulation relating to the rehabilitation prospect of the applicant. His Honour considered that it was very important that the applicant should receive supervision for a reasonably lengthy time on eventual release. However, the result of his Honour's sentences was that the period of supervision was one year following three years of incarceration, a result which was consistent with the application of the usual or conventional formula provided by the Crimes (Sentencing Procedure) Act 1999. I am inclined to the view that, with the greatest respect to his Honour, he did not carry into effect his expressed intention of providing a lengthy period after release under supervision to support and encourage the rehabilitation to which, as he accepted, the applicant was genuinely committed. I think it is likely that his Honour simply omitted to adjust the sentences as he had intended to do, an echo of what occurred in R v Sharrett [1999] NSW CCA 209, in which this Court corrected a sentence which did not provide a greater degree of supervision than the conventional period following an accumulation, despite the learned sentencing judge's expressed view, that special circumstances justified a departure from the statutory formula.
6 At all events, I am satisfied that, in the circumstances of this case, following a period of three years incarceration, twelve months was an inadequate period to provide for the supervisory rehabilitation of the applicant. Rehabilitation, when it can be effected, is not only in the interests of the offender, but is also in the public interest. Accordingly, I consider that this Court should intervene to correct the error below. In this regard, we have been provided with certificates of work undertaken in the prison situation in respect of which the applicant is to be commended, and which confirm, to my mind, his Honour's conclusion that the applicant does genuinely wish to rehabilitate himself. Of course the crucial issue in his case, as in so many others, is not only a change of mind, but a mode of coping with the stresses of life outside prison without drugs. It is notorious that only long-term solutions to drug problems provide any real hope. It is with this in mind that I consider, with the greatest respect, that the effect of his Honour's sentences was to allow too short a period for that to be effected. I am satisfied that the sentence was, therefore, manifestly excessive.
7 Accordingly, I would give the applicant leave to appeal. I would propose the sentence in respect of the offence of breaking, entering and stealing be quashed and that a sentence of three years imprisonment be imposed commencing on 26 July 2000 and expiring on 25 July 2003. I would order that the applicant be released on parole on 25 October 2001. Those are the orders I propose.
8 SMART AJ: David Beale seeks leave to appeal against the severity of two sentences of imprisonment. In respect of the offence of steal from the person, the applicant was sentenced to a fixed term of two years imprisonment to commence on 27 July 1999 and to expire on 26 July 2001. In respect of the offence of break, enter and steal, he was sentenced to a minimum term of two years’ imprisonment to commence on 26 July 2000 and expire on 25 July 2002. There was an additional term of twelve months to commence on 26 July 2002. The judge has overlapped the two sentences by twelve months.
9 There is a further overlap of sentences in that the Manly Local Court, on 19 August 1999, sentenced the applicant to a minimum term of twelve months starting on 12 July 1999 and ending on 11 July 2000 with an additional term of four months. I am not persuaded that the judge failed to carry out his intentions in respect of the sentences which he imposed. However to my mind, in the circumstances of the present case, the period allowed for rehabilitation, namely twelve months, was demonstrably insufficient.
10 The applicant has a serious drug problem and he will certainly need extended treatment and supervision upon his release from prison. This is a case where although the full term of the sentences was correct, the allowance for supervised rehabilitation was insufficient. The appropriate allowance for that is a period of 21 months.
11 I would propose that leave to appeal be granted, the appeal against the fixed term of two years’ imprisonment in respect of the count of steal from the person be dismissed, the appeal against the sentence for break, enter and steal, be quashed and in lieu thereof the applicant be sentenced to a term of three years commencing on 26 July 2000 with a non-parole period of 15 months commencing on 26 July 2000 and expiring on 25 October 2001.
12 There was some debate about the further order that should be made by the Court, namely whether it should be ordered that he be released on the expiry of the non-parole period. Having regard to the terms of s 50 of the Crimes (Sentencing Procedure) Act 1999, such an order should be made. There does not seem to be any specific provision in the Act - and we were not referred to any - which deals specially with orders for release when there are wholly or partially accumulated sentences.
13 ADAMS J: The orders will be therefore as proposed by the Court.
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