REGINA v Guiliano Di Gregorio

[2004] NSWCCA 9

CITATION:	REGINA v Guiliano DI GREGORIO [2004] NSWCCA 9
HEARING DATE(S):	12/2/04
JUDGMENT DATE:	19 March 2004
JUDGMENT OF:	Beazley JA at 1; O'Keefe J at 2; Bell J at 3
DECISION:	Appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 (NSW) Pawnbrokers and Second-hand Dealers Act 1996
CASES CITED:	Attorney-General's Application [No. 1] under s 26 of the Criminal Appeal Act; R v Ponfield & ors [1999] NSWCCA 435; 48 NSWLR 327 Everett v The Queen (1994) 181 CLR 295 Griffiths v The Queen (1977) 137 CLR 293 R v Duncombe [2001] NSWCCA 483 R v Eastway (unreported) NSWCCA, 19 May 1992 R v Miles [2001] NSWCCA 274 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Richards [1981] 2 NSWLR 464 R v Tindall & Gunton (1994) 74 A Crim R 275 R v Trindall [2002] NSWCCA 364; 133 A Crim R 119
PARTIES :	REGINA (Appellant) Guiliano DI GREGORIO (Respondent)
FILE NUMBER(S):	CCA 60430/03
COUNSEL:	P Power SC (Crown) AP Cook (Respondent)
SOLICITORS:	S Kavanagh B Duchen (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/0054
LOWER COURT JUDICIAL OFFICER :	Coorey DCJ

60430/03

BEAZLEY JA
O’KEEFE J
BELL J

Friday 19 March 2004

REGINA v Guiliano Di Gregorio

Judgment

1 BEAZLEY JA: I agree with Bell J.

2 O'KEEFE J : I agree with Bell J .

3 BELL J: This is an appeal by the Director of Public Prosecutions against the inadequacy of a sentence pronounced by his Honour Judge Coorey (the Judge) on 17 October 2003 when the Respondent appeared for sentence in respect of one charge of breaking, entering and stealing and one charge of being carried in a conveyance without the consent of the owner. His Honour adjourned the proceedings to 25 June 2004 pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (the Act).

4 This Court has the power to entertain an appeal brought by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) from an order made by a Judge adjourning proceedings under to s 11 of the Act: R v Trindall [2002] NSWCCA 364; 133 A Crim R 119.

5 The notice of appeal was signed on 22 October 2003 and was served on the Respondent on 27 October 2003. No question of delay in bringing this appeal arises.

The history of the proceedings

6 On 8 April 2003 the Respondent pleaded guilty before the Judge to two counts on indictment: (i) breaking, entering and stealing contrary to s 112(1) of the Crimes Act 1900 (NSW); and (ii) drive conveyance taken without the consent of the owner contrary to ss 154A(1)(b) and 117 of the Crimes Act. He asked the Judge to take into account one offence on a Form 1 pursuant to the mechanism provided by ss 32 and 33 of the Act. This was an offence of making a false statement contrary to s 15(4) of the Pawnbrokers and Second-hand Dealers Act 1996 (NSW). The maximum penalty for the offence of breaking, entering and stealing is one of 14 years’ imprisonment. The maximum penalty for the offence provided by s 154A(1)(b) is one of five years’ imprisonment. The maximum penalty for the offence under the Pawnbrokers Act is a fine of $5,500.

7 The proceedings were fixed for trial on 8 April 2003. When the matter was called on the Respondent’s counsel sought a short adjournment. When the Court resumed, the Respondent pleaded guilty to each of the counts in the indictment. The Crown Prosecutor tendered a statement of the facts together with a number of statements contained in the Crown brief. The proceedings were stood over on the Respondent’s application and the Judge directed the preparation of a pre-sentence report.

8 The Respondent had been on bail in relation to these matters since 28 August 2002. The Crown Prosecutor opposed the grant of bail to the Respondent following the entry of his pleas of guilty. In the Crown’s submission, the only sentence that might properly be imposed on the Respondent was one of full-time custody.

9 The Judge continued bail and adjourned the proceedings to 4 July 2003.

10 The count under s 154A(1)(b) to which the Respondent pleaded guilty charged him with being the driver of a vehicle taken without the consent of the owner. The statement of facts contained the assertion that the Respondent had been observed by police officers driving the vehicle in company with a female person.

11 On 4 July 2003 the Respondent gave evidence on the resumption of the sentence hearing. He said of the s 154A(1)(b) offence that he had accepted a lift in a vehicle that he realised had been taken without the consent of the owner.

12 The Crown Prosecutor submitted that in light of the Respondent’s evidence a question arose as to whether he was traversing his plea. Although the offence charged was one contrary to s 154A(1)(b) the indictment pleaded that the Respondent was the driver of the vehicle. The Crown Prosecutor stated that he had not been on notice that there was any issue as to the facts. He sought an adjournment for a short period to consider the Crown’s position.

13 The proceedings were adjourned to 17 October 2003. The Crown renewed its application that the Respondent’s bail should be revoked. Again, the Crown submitted that any sentence other than one of full-time custody would constitute appealable error. The Respondent’s bail was continued.

14 On 17 October 2003 the Crown Prosecutor informed the Court:

“That the Crown will concede the traversal but present a replacement indictment in terms that on 15 August 2002 the offender did allow himself to be carried in a conveyance namely a Ford Laser registration NWP 607 knowing it was taken without the consent of the owner” (T 17/10/03 at 1).


The matter proceeded upon the basis that the respondent had been granted leave to withdraw the plea of guilty to the second count in the indictment presented on 8 April 2003 that charged him with driving the vehicle. He then pleaded guilty to a count framed in the terms that I have set out above. No fresh statement of facts was tendered. The only evidence of the facts of the offence was the Respondent’s version.

The facts

15 The facts concerning the offence of breaking, entering and stealing may be briefly stated. The offence occurred on 6 June 2002. The Respondent jemmied open a ground floor window of residential premises in Hunters Hill. He entered the premises and ransacked the house, turning out a number of drawers before stealing a Canon EOS camera, a Canon 80mm lens and a Canon 100-300mm lens. The total value of the property stolen was $1550.

16 The offence of being carried in a conveyance without the consent of the owner was committed on 15 August 2002. The Respondent accepted a lift in a vehicle knowing the vehicle to have been taken without the consent of the owner. His de facto partner had telephoned him in a state of distress after having a fall. At the time she was waiting to undergo hip replacement surgery. The Respondent unsuccessfully attempted to hail a taxi in order to collect her from Top Ryde. Two “young louts” offered him a lift. He realised that they did not have the consent of the owner of the vehicle.

17 The Form 1 offence is associated with the breaking, entering and stealing offence in that it arises out of the Respondent’s conduct later on the same day when he pledged the camera and the two lenses at a pawnbroker’s shop, signing a false statement of ownership. He received the sum of $200 for this pledge.

The respondent’s criminal history

18 The Respondent was aged 33 years at the date of the sentence hearing. He has a very lengthy criminal record dating back to when he was aged 13 years. He has been convicted before the Childrens’ Court, the Local Court and the District Court on numerous occasions. The offences of which he has been convicted include a number of offences of breaking, entering and stealing, possession of housebreaking implements, and stealing motor vehicles.

19 The Respondent appeared before the Waverley Local Court on 25 July 1988 and was convicted of offences of stealing from a motor vehicle; possession of housebreaking implements; taking and driving a conveyance without the consent of the owner; driving while unlicensed and breaking, entering and stealing. He was sentenced to a fixed term of imprisonment of 12 months in relation to the charge of taking and driving a conveyance and to a term of two years’ imprisonment with a non-probation period of six months in relation to the offences of breaking, entering and stealing and the possession of implements. This was his first sentence of imprisonment as an adult.

20 Thereafter the Respondent was sentenced to further terms of imprisonment following his conviction for offences that included breaking, entering and stealing and stealing motor vehicles.

21 On 3 June 1999 the Respondent appeared before Judge Williams in the District Court and adhered to pleas of guilty that had been entered in the Local Court with respect to three charges of breaking, entering and stealing and one charge of attempted breaking, entering and stealing. He asked the Judge to take into account a number of further offences on a Form 1 pursuant to s 33 of the Act. These included a further four breaking, entering and stealing offences, stealing a motor vehicle, taking and driving a conveyance without the consent of the owner and goods in custody.

22 Judge Williams sentenced the Respondent to a minimum term of one year and three months’ imprisonment to date from 26 August 1998 with an additional term of two years and nine months, making a total sentence of four years. The additional term was expressed to expire on 25 August 2002. His Honour specified that upon release on parole the Respondent was to accept the supervision of the Probation and Parole Service and to submit to an appropriate program of drug rehabilitation.

23 The Respondent was released on parole on 25 November 1999.

24 On 21 September 2001 the Respondent pleaded guilty before Judge Payne in the District Court to four counts of breaking, entering and stealing. These offences were committed between 21 February and 17 May 2000. He also pleaded guilty to one count of driving a conveyance without the consent of the owner. This offence was committed on 28 June 2000. In addition to these offences the Respondent adhered to pleas of guilty that had been entered in the Local Court in relation to three further charges of breaking, entering and stealing and one offence of driving a conveyance without the consent of the owner. The offence of driving a conveyance without the consent of the owner was committed while he was on bail for the breaking, entering and stealing offences. All of the offences for which the Respondent stood for sentence before Payne DCJ were committed while he was on parole in respect of the sentences imposed by Williams DCJ. His re-offending had commenced within three months of his release on parole

25 Judge Payne sentenced the Respondent to an effective sentence of three years and six months’ imprisonment. A non-parole period of one year and nine months was specified. Her Honour found that there were special circumstances that justified a longer than usual period on parole. The special circumstances that she identified were the Respondent’s long history of incarceration and the need to lessen the effects of institutionalisation on him. Her Honour took into account the need for the Respondent to have support upon his return to the community to prevent a relapse into drug abuse.

26 The offences that give rise to this appeal were committed while the Respondent was on parole in relation to the sentences imposed by Payne DCJ and the earlier sentences imposed by Williams DCJ. It is also relevant to note that on 5 August 2002 the Respondent appeared before the Burwood Local Court and was placed on a bond to be of good behaviour for 12 months following his conviction for an offence of breaking, entering and stealing. It would appear that this offence was associated with the offences for which the Respondent was dealt with by Payne DCJ and that it had not been included among offences for which he was committed for sentence to that Court as the result of an oversight. The commission of the offence of being carried in a conveyance without the consent of the owner was committed while the Respondent was subject to that bond.

The Respondent’s case at the sentence hearing

27 The Judge had the benefit of a number of reports concerning the Respondent. These included the pre-sentence report prepared in relation to the subject proceedings together with the pre-sentence reports that had been prepared in relation to the proceedings before Williams DCJ and Payne DCJ.

28 Reports tendered on the Respondent’s behalf were prepared by Ms Danylenko, an alcohol and other drug worker attached to the MRRC, Dr David Leary, Director of the Come In Youth Resource Centre (the Youth Centre) and Dr Christopher Lennings, a psychologist.

29 The Respondent is the son of Italian parents who migrated to Australia in the aftermath of World War II. At an early age he rebelled against his parents’ strict values. He commenced using cannabis at around the age of ten. By the time he was aged 13 years he had been introduced to heroin. His heroin usage rapidly escalated. The Respondent’s long history of criminal offending appears to be associated with his drug addiction.

30 The Respondent has enrolled in Naltrexone and Methadone drug treatment programs in the past. These had not been successful in overcoming his dependence on heroin.

31 Prior to his release on parole in 2002 the Respondent had spent the bulk of his adult life in custody. He had never been employed.

32 The Respondent is assessed by Dr Lennings as a person with “low cognitive skills”.

33 The Respondent is the father of a child who was born on 25 May 1998. He is no longer involved in a relationship with the child’s mother. She is addicted to drugs and has not shown any ability to care for the child. The child, a boy, is being raised by the Respondent’s elderly parents.

34 About six years ago the Respondent commenced a relationship with a woman named Tanya Mooney. The relationship is a stable and mutually supportive one. Ms Mooney has a teenage child who lives with her. She is willing to have the Respondent’s son live with them in the future.

35 The Respondent gave evidence that he had been released on parole in April 2002. He had not used heroin since his release. He enrolled in a Methadone treatment program a little time after his release. As a condition of the bail granted to him in August 2002 he had been attending his doctor monthly and providing urine samples for analysis.

36 It was the Respondent’s account that following his release he moved into premises with Ms Mooney. They had no money to pay for necessities. It was the pressure created by bills piling up and the electricity supply being cut off that led to the commission of the breaking, entering and stealing offence some two months after his release.

37 The Respondent had since obtained employment as a cleaner working for the Youth Centre and a school that is adjacent to it. He was working for two hours on two days each week and earning $30 per hour. He was attending regular counselling sessions with Mr Leary.

38 The Respondent said that there had not previously been a time when as an adult he had been free of offending and illicit drug use for a period of the length of 12 months. He said that things seemed to be going really well for him since he had commenced the counselling sessions with Mr Leary. He spoke of having goals for the future. In this connection he said that he intended to complete a TAFE landscape trade course that he had commenced while in custody. He was due to commence that course in October 2003.

39 When the proceedings were resumed on 17 October 2003 the Respondent gave further evidence. He had obtained employment with Master Care High Rise Cleaning Services. He was working on Mondays, Wednesdays and Fridays. He had applied for and obtained admission to the TAFE landscape course. He said he had attended the course for a couple of weeks, but that he had discontinued it. His reasons for this were that he had found it difficult to work in an environment with people who were younger than he and attendance at the TAFE interfered with his employment. At the time of giving evidence he had applied to undertake the course by correspondence.

40 The Respondent said that he had continued to remain free of prohibited drugs. He was still on the Methadone program.

41 In cross-examination the Respondent was challenged on his evidence that he had committed the breaking, entering and stealing offence to obtain money to pay household bills. It was suggested to him that he had committed the offence to obtain money for drugs. He denied that this was the case.

42 The Respondent agreed that he had been on Methadone treatment programs in the past and that on an earlier occasion he had used heroin and cocaine throughout the period of his participation in such a program. He considered the Naltrexone program to have been successful, even though he had re-offended following his release after undertaking that program.

43 The Judge’s reasons for adjourning the proceedings pursuant to s 11 of the Act were expressed with brevity. He did not record his findings of fact. However, it does appear from his reasons that the Judge accepted the Respondent’s claim that he had not returned to drug use.

44 The Respondent agreed that he had given evidence before Payne DCJ of his daily telephone contact with his son and of his relationship with Ms Mooney and of her medical difficulties.

45 Mr Leary gave oral evidence on the Respondent’s behalf on 17 October 2003. Mr Leary is the Director of the Youth Centre and has worked there for some 25 years. He first encountered the Respondent as a client of the Youth Centre in August 1983. Between 1983 and 1985 he had regular contact with him. In the years that followed the Respondent occasionally made contact with Mr Leary. Independently of the past association between the Youth Centre and the Respondent, Ms Mooney sought and was given financial assistance by the Youth Centre in connection with medical treatment for her hip. This, it would seem, impressed the Respondent and led to him resuming regular contact with Mr Leary following his release from custody in mid-2002.

46 Mr Leary considered that not long after these offences took place the Respondent had come to an acute realisation that he had “really screwed up” and that he had the capacity to lose a great deal and, in particular, his relationship with Ms Mooney. Mr Leary was aware that the Respondent had expressed similar sentiments in the past. However, he considered that the Respondent had shown tangible signs of change. In the course of his evidence Mr Leary observed that it was not accurate to paint a picture that “everything was rosy”. He described it as being a constant struggle to keep the Respondent thinking positively of himself as a person who belongs within the community. However, the fact that the Respondent had obtained the cleaning job and was persisting with it was some evidence of a change in attitude.

47 In his report dated 5 June 2003 Dr Lennings stated:

“Mr Di Gregorio’s response style on the test appeared open and frank and the resulting profile is likely to be a good indicator of his underlying personality. Mr Di Gregorio’s personality is dominated by significant problems in controlling risk-taking and sensation seeking behaviours. As a consequence he reports engaging in impulsive and drug abusing behaviours that he identifies as having produced significant impairment in his life to date. Although on interview Mr Di Gregorio expressed hope in his capacity to remain drug free, his responses on the PAI (Personality Assessment Inventory) indicated a significant concern with the impacts of his drug use and fear of a return to substance abuse.

Mr Di Gregorio endorsed a number of items indicating anti-social behaviours and egocentricity. The majority of these items concern past behaviours, and Mr Di Gregorio does not appear to be trying to hide or obfuscate his very unfortunate criminal history. Mr Di Gregorio endorsed some items suggesting a transitory depressive state occurs from time to time. He described his interpersonal world as relatively empty and cold and presents as a socially isolated young man. He reports low self-esteem and a negative self-concept, although such a perception is understandable given the apparent harsh honesty with which he had evaluated his past anti-social behaviours and bleak interpersonal world.
Mr Di Gregorio reveals a personality pattern marked by impulsivity and tendency to volatility in relationships, but indicated he retained some effective control over frank aggressiveness. Rather unexpectedly given the historical picture, Mr Di Gregorio endorsed a number of items suggestive of a willingness to change and preparedness for treatment.
Overall the assessment indicates that Mr Di Gregorio is maturing out of what has been a long period of conduct disorder and anti-social behaviour dominated by persistent drug abuse and criminality. It is highly likely that an assessment of Mr Di Gregrorio even a few years earlier would have led to a dire formulation however, it seems that he is now genuinely seeking a way out of his prior self-defeating behaviour. Despite the profile of impulsivity, risk taking and anti-social behaviour, his behaviour over the last six to nine months mitigates against a diagnosis of personality disorder. It is probably too early yet to know whether the positive changes revealed in Mr Di Gregorio can be maintained, but it is the case that such changes are observable.
Formulation . Mr Di Gregorio presents as a young man who has an entrenched anti-social lifestyle and is of low cognitive ability. Nonetheless he appears to have begun a late maturation process and is currently strongly motivated to alter and change his behaviour. He has some insight into the most significant risk factors for him, which are boredom and drug use, and he sees as underlying this his lack of any regular routine or activity. However, Mr Di Gregorio also remains vulnerable to future criminal behaviour as a result of peer associations. Mr Di Gregorio seems to be unaware of the extent to which he can be fairly easily led back into crime through those associations. It would be very important for Mr Di Gregorio to be placed into fulltime employment as soon as possible, so that he is able to achieve his goal of obtaining a pro-social lifestyle.”

The Judge’s reasons

48 In delivering his reasons for adjourning the proceedings pursuant to s 11 of the Act, the Judge said:

“When I first saw this case, and I saw the length of this man’s criminal record, I thought to myself there is no way in the world that this person could possibly receive anything but a fulltime jail sentence. It seemed to me that way in the beginning before I knew anything else. But having looked at all the evidence and having heard from the prisoner and having heard from Mr Leary, it seemed to me that this might be his cross-roads.
I suppose it would be so easy just to put him back in jail and close my eyes but I think that would be the easy way out. I think I have to make some effort to assist him in his rehabilitation, and I am impressed with the evidence of Mr Leary who comes from the Youth Resource Centre. It is a reputable centre. It has strong foundations.”

49 The Judge went on to observe that this was a “rather exceptional case”. He referred to Mr Leary’s evidence of the tangible progress that the Respondent had made and to the latter’s view that he needed supervision. His Honour said:

“I have reflected upon this and it does seem to me that this man is at a period of his life where he can prove that he has rehabilitated himself so I am going to put the ball into his court. … I think that I am taking a very individual approach and I am impressed by the circumstances of this case and in particular the evidence that this is the first time that this prisoner has kept himself out of jail. He has been incarcerated most of his life.”
…
I will take the difficult way and that is I will proceed with a Griffiths remand under s 11 of the Crimes (Sentencing Procedure) Act . The prisoner is convicted. For the purpose of assessing his capacity and prospects for rehabilitation, I adjourn the sentencing proceedings to Friday 25 June 2004.”

His Honour then imposed continuing conditions of bail.

The parties’ contentions

50 In written submissions the Crown contended that a central issue in a Crown appeal from an order made pursuant to s 11 of the Act is whether the circumstances of the offence and of the offender are such that, in the event that rehabilitation and reform are achieved whilst the offender is on remand, a non-custodial sentence would be manifestly inadequate. In support of this submission the Crown referred to the decision of this Court in R v Miles [2001] NSWCCA 274. In that case it was held that the primary judge had not erred in adjourning the proceedings pursuant to s 11 of the Act. The respondent to the Crown appeal was a young man who had pleaded guilty to a large number of offences of breaking, entering and stealing. Studdert J (in a judgment with which Hodgson JA and Mathews J agreed) referred to the discussion in R v Tindall & Gunton (1994) 74 A Crim R 275 in which the principle for which the Crown contended was expressed. Tindall was a case concerned with a common law Griffiths remand: Griffiths v The Queen (1977) 137 CLR 293.

51 On the hearing of the appeal, the Crown Prosecutor did not seek to contend that a determination to adjourn proceedings under s 11 might only be justified in a case where ultimately it is open to the court to impose a non-custodial sentence. The Crown conceded that the discretion conferred by s 11 of the Act is expressed in wide terms and that it cannot be circumscribed by reference to the principles that applied to the grant of a Griffiths remand at common law.

52 This Court considered the scope of the discretion conferred by s 11 of the Act in R v Trindall [2002] NSWCCA 364; 133 A Crim R 119. Smart AJ (in a judgment with which Spigelman CJ and Grove J concurred) reviewed the legislative history of the provision together with the authorities relating to the common law Griffiths remand. At [64] his Honour said:

“The granting of a Griffiths remand is likely to arise for consideration in a relatively small number of cases. Generally, such a remand should not be granted unless there are good reasons for concluding that it is likely to assist the Court in determining whether an offender should be sent to gaol or in fixing the length of the sentence or the non-parole period. If the latter be the case, the judge should, as here, make it clear to the offender that he will be going to gaol and that the purpose of the remand is to assist the court in fixing the non-parole period. This Court should not seek to circumscribe the wide statutory discretion given to the sentencing judge.”

53 Section 11 confers on a court the discretion to adjourn sentencing proceedings for a period of up to 12 months from the date of the finding of guilt for any of the purposes set out in subs (1). The discretion conferred is one to be exercised consistently with sentencing principle. Smart AJ in Trindall considered that the occasions for the grant of a s 11 remand would arise in a relatively small number of cases. The reasons for this were discussed in R v Palu [2002] NSWCCA 381; 134 A Crim R 174 by Howie J (with whose judgment Levine and Hidden JJ agreed) at 182 [30]:

“The exercise of the power given under s11 will inevitably result in delay in the finalisation of the prosecution of the offender. On many occasions, as in the present case, that delay will be substantial. Unless the further delaying of the sentencing of the offender is wholly justified in order to ensure that the sentencing discretion is properly exercised, there will be a miscarriage of justice. Time and again sentencing courts are asked to have regard to the delay in sentencing an offender as a matter of mitigation because of the adverse effects of delay upon the well-being of the offender and the disruption it causes to his or her everyday life. Delay unavoidably results in unfairness: unnecessary delay results in injustice. Steps have been taken throughout the criminal justice process to eliminate unnecessary delay wherever possible. Unless delay in the sentencing of the offender is essential in order to ensure a just result, the court has failed in its duty both to the offender and the community.”

54 Mr Cook, who appeared on the Respondent’s behalf, did not concede that a sentence of full-time custody was inevitable in this case. However, he contended that it should not be assumed that the Judge had decided against the imposition of a sentence of full-time custody. It was his submission that the Judge may have considered that a further lengthy adjournment of the proceedings would assist him to determine the length and structure of the sentence. In Mr Cook’s submission this would have been a proper exercise of the discretion conferred by s 11. I do not accept either of these propositions. To my mind his Honour’s remarks on 17 October 2003 served to convey that, subject to the Respondent maintaining his satisfactory progress, at the conclusion of the remand period he would not be sentenced to a term of full-time custody. Were he to have been of the contrary view so much should have been made clear.

55 The contention that in the circumstances of this case a proper exercise of the s 11 discretion admitted of adjourning the proceedings for a further lengthy period in order to better assess the length of the sentence and the non-parole period is not without difficulty. It could hardly be thought to be conducive to the Respondent’s rehabilitation, or to any of the other purposes of sentencing, to adjourn the sentence hearing and allow him to maintain employment and stabilise his relationship with his partner and son over a period of many more months only to disrupt any progress that had been achieved by the imposition of a delayed sentence of full-time custody. Generally in cases that call for the imposition of a sentence of full-time custody the court should be astute to avoid delay. There will be exceptions, as Trindall allows.

56 I approach the determination of the Crown appeal upon the basis that the Judge’s determination carried with it that, should the Respondent maintain satisfactory progress towards his rehabilitation, a sentence that did not involve full-time custody will be imposed on him.

57 The Crown contended that even if the Respondent were able to demonstrate that he is rehabilitated at the conclusion of the period of the remand, the case is one that calls for full-time imprisonment to satisfy the other purposes of sentencing including general deterrence and punishment. In adopting the course that he did the Judge was said to have given insufficient consideration to the fact that the offences were committed while the Respondent was on parole for like offences. This was submitted to be a circumstance of very considerable aggravation.

58 The submission made by the Crown Prosecutor on 8 April 2003, that a sentence of full-time custody was the only proper sentence to impose, had merit. The Respondent, a man aged 32 years, had committed further offences while the subject of parole orders in respect of two sentences imposed on him, in each case, for like offences. The commission of an offence while on parole is a circumstance of aggravation and requires a sentence that reflects a significant deterrent component: R v Duncombe [2001] NSWCCA 483 at [60]; R v Richards [1981] 2 NSWLR 464; and Attorney-General’s Application [No. 1] under s 26 of the Criminal Appeal Act; R v Ponfield & ors [1999] NSWCCA 435; 48 NSWLR 327 per Grove J at 337 and 338 [48] – [49].

59 This is an appeal brought against the discretionary determination made by the Judge on 17 October 2003. There had been an interval of a little over six months between the date of the entry of the pleas of guilty and the date of the determination the subject of this appeal. In the ordinary course a delay of weeks not months (in the event that the Respondent had sought some further time to obtain reports of the like) might have been expected between the date of the plea of guilty and the date of sentence. The reasons for the delay are unexplained. The Crown was consistent in seeking to have the Respondent sentenced without delay. As it was the proceedings were adjourned for a period of three months following the entry of the plea. On the next occasion when the question of whether the Respondent had traversed his plea arose, the Crown Prosecutor stated that he could obtain instructions on this issue “very quickly”. Given this stance, and the history of the proceedings to that date, it is surprising that the hearing should have been adjourned for a further period of three months.

60 As Mr Cook observed, the Respondent was not responsible for the delay that attended the proceedings in the period between 8 April and 17 October 2002. On his behalf a pre-sentence report was sought on 8 April 2003. This should not have necessitated a delay of three months. His counsel did not seek an adjournment of that length. Equally his counsel did not seek the further three month adjournment of the proceedings. It would seem that the Court was not able to list this unremarkable part-heard sentence hearing on an earlier date on either of the occasions when the proceedings were stood over. This may be thought to be a matter of concern.

61 The lengthy delays that attended the proceedings prior to 17 October 2003 give rise to a matter that was not the subject of argument on the hearing of the appeal. On 17 October 2003 the Judge adjourned the proceedings to 25 June 2004 pursuant to s 11 of the Act. This was a period of some eight months. The proceedings had already been adjourned for a period of just over six months from the date the Respondent entered his plea to the count of breaking, entering and stealing. Section 11(2) provides that the maximum period of an adjournment under the section is 12 months from the date of the finding of guilt. We did not had the benefit of submissions from the parties as to what constitutes the date of the finding of guilt for the purposes of the section. On one view the date of the finding of guilt in respect of the offence of breaking, entering and stealing was 8 April 2003. On that date the Respondent pleaded guilty, the Crown tendered the facts and other materials relied upon it in support of the count and the Judge ordered the preparation of a pre-sentence report. On this analysis his Honour’s discretion miscarried in remanding the proceedings to a date after 7 April 2004. However, since the point was not taken it does not seem to me to be appropriate to determine the question in this case.

62 In the event, when the matter came back before the Court on 17 October 2003 there was evidence to suggest that the Respondent had made substantial progress towards overcoming his drug addiction while at liberty in the community. He had been at liberty for a period of over 12 months without re-offending. He was in employment for the first time in his life and maintaining a drug free lifestyle. These were matters that the Judge took into account in determining to adjourn the proceedings pursuant to s 11 of the Act to assess the Respondent’s prospects for rehabilitation.

Conclusion

63 As I have noted, the appeal is against the determination made on 17 October 2003 when the proceedings were adjourned pursuant to s 11 of the Act. In Everett v The Queen (1994) 181 CLR 295, McHugh J said at 306 –307:

“If a sentencing Judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, a case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals. It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved. Such cases, however, are likely to be rare. Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence. Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence. The requirement of leave gives rise to the inference that Parliament intended that something more than mere error was to be the criterion of the grant of leave.”

64 The Respondent stood for sentence in respect of one charge of breaking, entering and stealing and one charge of being carried in a conveyance without the consent of the owner. Both offences were significantly aggravated by the fact that they were committed at a time when he was on parole. However, it must be acknowledged that, in the case of offenders whose offending is the product of long-term drug addiction, cogent evidence of rehabilitation has on occasions been found to justify marked leniency: R v Eastway (unreported) NSWCCA, 19 May 1992, at p4 per

Hunt CJ at CL (with whom Gleeson CJ and Mathews J agreed) and the cases referred to therein. This is an appeal brought by the Crown and is subject to the same principles of restraint as govern appeals by the Crown from a final sentence. I have concluded that it cannot be said that as at 17 October 2003 it was not open to the Judge to decide that the Respondent’s progress towards rehabilitation was of such an order as to admit of the adjournment of the proceedings pursuant to s 11 of the Act.

65 For these reasons I propose that the appeal be dismissed.

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Last Modified: 03/23/2004