Regina v Pavicevic - [2004] NSWCCA 80

No judgment structure available for this case.

Reported Decision:
144 A Crim R 163

New South Wales

Court of Criminal Appeal

CITATION: Regina v Pavicevic [2004] NSWCCA 80

HEARING DATE(S): 27/02/04

JUDGMENT DATE:
27 February 2004

JUDGMENT OF: James J at 1

DECISION: Appeal dismissed

CATCHWORDS: Criminal law - sentencing - principles - Drug Court

LEGISLATION CITED: Drug Court Act
Criminal Appeal Act
Crimes (Sentencing Procedure) Act

CASES CITED: R v Ebsworth [2002] NSWCCA 465
R v Henare [2003] NSWCCA 376

PARTIES :
Regina v Dusan Pavicevic

FILE NUMBER(S): CCA 60470/03

COUNSEL: A Francis - Applicant
P Ingram - Crown

SOLICITORS: B Sandland - Applicant
S Kavanagh - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2001/0045

LOWER COURT
JUDICIAL OFFICER : Milson DCJ

IN THE COURT OF
CRIMINAL APPEAL

60470/03

JAMES J

27 February 2004

Regina v Dusan Pavicevic

JUDGMENT

1 JAMES J: Dusan Pavicevic has appealed against sentences imposed on him on 11 November 2002 in the Parramatta Drug Court by his Honour Judge Milson. The sentences imposed by Judge Milson on 11 November 2002 were final sentences, imposed pursuant to s 12 of the Drug Court Act (“the Act”), after initial sentences for the same offences had been imposed, an order had been made imposing the conditions of a drug program to be undertaken by the appellant, the execution of the initial sentences had been suspended, the appellant had, for a time, undertaken the drug program, the Drug Court had decided on 6 August 2002 to terminate the appellant’s drug program and the Drug Court had on 11 November 2002 reconsidered the initial sentences.

2 This appeal was originally listed before a bench of three judges constituting the Court of Criminal Appeal. However, the Court drew the parties’ attention to s 5AF(3) of the Criminal Appeal Act , which provides that the power of the Court of Criminal Appeal to hear and determine an appeal under s 5AF is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct. Subsequently, the Chief Justice directed that I should hear and determine this appeal.

3 On 8 May 2001 Judge Milson dealt with the appellant in accordance with s 7 of the Act in relation to fifteen offences to which the appellant had pleaded guilty in the Local Court. The offences consisted of four offences of receiving, two offences of goods in custody, two offences of breaking, entering and stealing, one offence of breaking and entering with intent, two offences of possession of a prohibited weapon, one offence of possession of housebreaking implements, one offence of possession of car breaking implements and two offences of maliciously damaging property. The offences had been committed between 16 May 2000 and 27 December 2000.

4 On 8 May 2001 Judge Milson imposed sentences of imprisonment of six months for all of the offences, except for the two offences, of breaking, entering and stealing and the offence of breaking and entering with intent. For each of the two offences of breaking, entering and stealing, which had been committed on 16 November 2000 and 6 December 2000 respectively, his Honour imposed a sentence of imprisonment for one year eight months and two weeks. His Honour arrived at the term of one year eight months and two weeks by deducting the period of approximately three and a half months from 27 December 2000 to 11 April 2001, during which the appellant had been in custody, from the period of two years which his Honour said would otherwise have been the length of the sentences his Honour would have imposed. His Honour imposed a sentence of imprisonment of one year for the offence of breaking and entering with intent.

5 Having imposed these sentences, which were initial sentences pursuant to s 7(2A) of the Act, his Honour made an order pursuant to s 7(3)(a) of the Act, imposing on the appellant the conditions the appellant had accepted as the conditions of a drug program he was to undertake and his Honour made an order pursuant to s 7(3)(b) of the Act, suspending the execution of the sentences for the duration of the drug program.

“He then entered a Drug Court program. In sentencing him for those offences today I am required to take into account the nature of his participation in his Drug Court program. Having entered in May 2001 he remained on the program until he went into custody on 17 July 2002 when arrested for subsequent offences. He had progressed satisfactorily, although there were sanctions for repeated drug use on a number of occasions and on one occasion a warrant had issued when he had failed to come to court. He subsequently did surrender without the execution of that warrant and he had a medical certificate to explain his absence.

In November he moved into phase two of the Drug Court program and through December he was continuing to go very well. In summary, he put in seven months of compliance with his program and in many respects did well and was congratulated, so much so that sanctions that had been imposed for breaches of his program had been waived as a reward for his good performance on his program.

In January 2002 things started to get worse. He had stopped taking his Naltrexone and drug tests were revealing the presence of illegal drugs. It appeared that during that time he had in effect abandoned his program by not coming to court on the thirty first, by failing to obey directions to come to court that had been given to him by a nurse, by a number of heroin uses, of cocaine use and missed drug tests. At that stage he was anxious about starting or resuming his TAFE course but certainly was not doing his Drug Court program.

On 20 February 2002 an employer thought so highly of him that he came to support even though he had continued to breach his program and had [to] serve custodial sanctions.

By the end of his program he had in fact served forty four days in custody for breaches of his program. He abandoned his program in March and a warrant was executed about a month later. In the light of evidence the Court heard about him going down to his sister’s place in Queanbeyan where he detoxified and as the Court was aware that he had remained in treatment it was decided that he could continue.

In May there was an offence involving the dishonest use of somebody else’s motor vehicle when he was arrested in Fairfield. The Court decided to give him the opportunty to prove that there remained a useful purpose within the Drug Court program but before that could come to pass he again left. Warrants were issued and he was charged with a number of other offences”.

7 Between 23 March 2002 and 17 July 2002 the appellant committed a further fourteen offences. These offences were two offences of driving a conveyance without consent, three offences of being an unlicensed driver, two offences of possession of car breaking implements, one offence of goods in custody, one offence of driving in a dangerous manner, one offence of stating a false name as a driver of a vehicle, one offence of taking and driving a conveyance, two offences of larceny and one offence of self-administering a prohibited drug.

8 The appellant was arrested on 17 July 2002 and remained in custody between 17 July 2002 and 11 November 2002. On 6 August 2002 the Drug Court, pursuant to s 10 of the Act, terminated the appellant’s drug program, on the basis that the appellant had failed to comply with the program and the Court was satisfied that the appellant was unlikely to make any further progress in the program.

9 On 11 November 2002 Judge Milson reconsidered the initial sentences which had been imposed on the appellant on 8 May 2001 and also sentenced the appellant for the further offences committed between 23 March 2002 and 17 July 2002. In his remarks on sentence delivered on 11 November 2002 Judge Milson stated the facts of the original offences, summarised the history of the appellant’s participation in the drug program, referred to medical evidence about the appellant including evidence from Dr Reid of the Corrections Medical Service and summarised the criminal history of the appellant.

10 A report from Dr Reid dated 11 November 2002 was admitted into evidence in the proceedings on sentence. In his report Doctor Reid said that he had diagnosed the appellant as suffering from a major depressive illness, both when committing the original offences and when committing the further offences.

“It has been stressed to the Court today, and I think on earlier occasions, that the offender does not attribute any blame for his criminal behaviour on events in his life and in particular the death of his mother when he was a teenager. I do not think that Dr Reid agrees entirely with that and I think the suggestions and implications of the report are that Mr Pavicevic continues to block both his feelings towards his father’s cancer and his attitudes to the death of his mother at a time when it would be expected to be significant in his life and at a time which coincidently, marked the commencement of his criminal record”

“Having set aside those sentences which were initially imposed and considering the nature of his participation in his Drug Court program, the length of time that he went well on that program, the subjective features relating to his family which I did not take into account to any great extent when he was originally sentenced, I am of the view that the sentences then imposed ought to be significantly reduced.”

13 Apart from the sentences for the two offences of breaking, entering and stealing, the final sentences which Judge Milson imposed on 11 November 2002 for the original offences were the same in length as the initial sentences which his Honour had imposed on 8 May 2001. For each of the two offences of breaking, entering and stealing, his Honour imposed a sentence of one year and three months in lieu of the initial sentence for each offence of one year eight months two weeks. His Honour ordered that all of the final sentences commence from 17 July 2002, the date when the appellant had been taken into custody.

14 For all of the further offences, subject to three exceptions, his Honour imposed sentences of imprisonment for twelve months or six months or until the rising of the Court, all these sentences also to date from 17 July 2002. For the offence of taking and driving a conveyance and taking into account an offence of larceny and an offence of self-administering a prohibited drug, his Honour, exercising the jurisdiction of the District Court, imposed a sentence of two years to commence on 17 October 2003, that is on the expiration of the two final sentences for breaking, entering and stealing. His Honour set a non-parole period of nine months. In setting such a non-parole period his Honour took into account that the sentence was to be served cumulatively on other sentences and that “the time that the offender has spent meaningfully on his Drug Court program indicates that there are in fact real prospects of his rehabilitation” and his Honour also took into account Dr Reid’s report.

15 As I have already noted, Judge Milson in sentencing the appellant for the offence of taking and driving a conveyance was exercising the jurisdiction of the District Court. In imposing all the other sentences, both for the original offences and the further offences, his Honour was exercising the jurisdiction of the Local Court and was subject to the restrictions applying to the sentencing of offenders in the Local Court.

16 The present appeal against sentence is limited to the final sentences imposed for the original offences. No complaint has been made about the sentences for the further offences.

17 Indeed, it would seem to me that any appeal against the sentences for the further offences would not be an appeal within s 5AF of the Criminal Appeal Act and could not be heard by a single judge as constituting the Court of Criminal Appeal.

“(1) On terminating a drug offender’s program, the Drug Court must reconsider the drug offender’s initial sentence.
(2) In reconsidering a drug offender’s initial sentence, the Drug Court must take into consideration:
(a) the nature of the drug offender’s participation in his or her program, and
(b) any sanctions that have been imposed on the drug offender during the program, and
(c) any time for which the drug offender has been held in custody in connection with an offence to which his or her program relates, including time during which the person has undergone imprisonment:
(i) under the sentence, or
(ii) under the condition of the program arising under section 8A.
(3) After considering a drug offender’s initial sentence, the Drug Court is to determine the drug offender’s final sentence:
(a) by making an order setting aside the initial sentence and taking such action under Part 2 of the Crimes (Sentencing Procedure) Act 1999 as it could have taken for the offence to which the initial sentence related, or
(b) by making an order confirming the initial sentence.
(4) The final sentence determined for a drug offender in relation to an offence is not to be greater than the initial sentence imposed on the drug offender in relation to that offence.
(5) (Repealed)”

The sentencing judge erred by having insufficient regard to the applicant’s subjective case in reconsidering the initial sentences and imposing final sentence

“Today I disregard some of the subjective features that may indicate that a more sympathetic sentence is appropriate, that there are very real prospects of him obtaining his rehabilitation as a result of this program. The reason I refrain from doing that is that in a while his Drug Court program will end and then the Court will know his real desire and ability to achieve rehabilitation.”

21 Counsel for the appellant then referred to paras 22 and 30 of his Honour’s remarks on sentence of 11 November 2002, which I have already quoted.

22 It was submitted by counsel for the appellant that, inconsistently with the view his Honour had expressed in para 30 of his remarks of 11 November 2002 that in the final sentencing of the appellant the initial sentences ought to be significantly reduced, his Honour had not significantly reduced those sentences in determining the final sentences. The only changes his Honour had made to the initial sentences were to reduce the sentences for the two offences of breaking, entering and stealing from one year eight months two weeks to one year three months. In reconsidering the initial sentences, his Honour would have been required to take into consideration the forty-four days the appellant had spent in custody during the drug program for breaches of the program. If this period of approximately one and a half months was deducted, there was only a difference of about four months between the initial sentences and the final sentences for the offences of breaking, entering and stealing.

The sentencing judge erred in failing to give reasons for imposing fixed terms of imprisonment in relation to those sentences for which no non-parole period was specified

24 In setting the final sentences for the two offences of breaking, entering and stealing, his Honour did not set a non-parole period for either sentence and did not expressly state any reason for not setting a non-parole period. Counsel for the appellant referred to s 45(2) of the Crimes (Sentencing Procedure) Act .

25 By virtue of s 45(4) of the Crimes (Sentencing Procedure) Act the failure of his Honour to give reasons for not setting a non-parole period did not invalidate the sentence.

In reconsidering the initial sentences imposed by the Drug Court, the sentence judge erred by imposing fixed terms which represented the appropriate head sentences

27 The initial sentences for the offences of breaking, entering and stealing were both expressed to be sentences of one year eight months two weeks, without any non-parole periods being set.

28 It was submitted by counsel for the appellant that, when Judge Milson came to impose final sentences the term of one year eight months two weeks should have been regarded by his Honour as being a head sentence for which a non-parole period could have been set and not as being a sentence of a fixed term of imprisonment.

29 It was said to be the practice in the Drug Court not to set a non-parole period when imposing an initial sentence, because the offender is about to undertake a drug program and the sentence is to be immediately suspended.

30 It was submitted that, if the initial sentence for each offence of breaking, entering and stealing of one year eight months and two weeks was regarded, as it should have been, as a head sentence, then, if a non-parole period had been set and the common practice had been followed of dividing the head sentence into a non-parole period and a parole period in the ratio of three to one, then the non-parole period would have been approximately 15 months.

31 The submission continued that if, in imposing final sentences for the two offences of breaking, entering and stealing, Judge Milson imposed fixed terms of imprisonment, as his Honour did, and his Honour based the final sentences on the initial sentences as adjusted, then the length of the fixed terms should have been based on the notional non-parole periods of the initial sentences and not on the full terms of the initial sentences.

32 Counsel for the appellant referred to a decision of Smart AJ in R v Henare [2003] NSWCCA 376, in which his Honour would appear to have upheld a similar submission (see in particular paragraph 18 of his Honour's judgment).

33 In my opinion, his Honour did err in the way submitted by counsel for the appellant and counsel for the Crown, on the hearing of this appeal, did not contend, or at least did not contend strongly, to the contrary. In my opinion, his Honour, in imposing final sentences for the original offences, should have regarded the initial sentences he had imposed as being head sentences and not as being fixed terms of imprisonment and, consequently, the fixed terms of imprisonment his Honour set in imposing final sentences should have borne a relationship to the notional non-parole periods of the initial sentences and not the full terms of the initial sentences.

34 However, counsel for the Crown submitted that, before I could allow the appeal against sentence, I would have to be of the opinion, in accordance with section 6(3) of the Criminal Appeal Act , that some other sentences less severe than those imposed by his Honour were warranted in law and should have been passed. It was submitted by counsel for the Crown that, in determining that question, I should take into account the very large number of offences for which final sentences were being imposed. It was submitted that the sentences which his Honour had imposed were very lenient and that the leniency of the sentences was increased by his Honour having made most of the sentences fully concurrent with each other. Counsel for the Crown referred to the decision of a three-judge bench of this Court in R v Ebsworth [2002] NSWCCA 465, especially at paragraphs 16 and 17, where the Chief Judge at Common Law, on an appeal against the severity of sentences passed in the Drug Court, said inter alia that, in order for the Court of Criminal Appeal to intervene, it would have to be satisfied that a lesser sentence was warranted in law and should have been imposed, and his Honour referred to section 6(3) of the Criminal Appeal Act .

35 Counsel for the appellant submitted that, in assessing whether the sentences imposed by Judge Milson were lenient, it was important to take into account that the sentences his Honour imposed were imposed in the exercise of the jurisdiction of the Local Court and his Honour was subject to the restrictions on the maximum penalties that can be imposed and the restrictions on the accumulating of sentences which apply in the Local Court.

36 In response to these submissions by counsel for the appellant, counsel for the Crown submitted that the sentences imposed by Judge Milson were lenient, even having regard to the restrictions on the sentences which can be imposed in the exercise of the jurisdiction of the Local Court.

37 I have reached the conclusion that I should not form the opinion required by section 6(3) of the Criminal Appeal Act . In my opinion, the final sentences imposed by Judge Milson for the original offences, even after taking into account the matters Judge Milson was required to take into account under s 12 of the Drug Court Act and that Judge Milson was exercising the jurisdiction of the Local Court, were very lenient and no lesser sentences would be warranted in law.

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Last Modified: 04/01/2004

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Citations

Regina v Pavicevic [2004] NSWCCA 80

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

3

R v Henare [2003] NSWCCA 376

R v Ebsworth [2002] NSWCCA 465

CITATION:	Regina v Pavicevic [2004] NSWCCA 80
HEARING DATE(S):	27/02/04
JUDGMENT DATE:	27 February 2004
JUDGMENT OF:	James J at 1
DECISION:	Appeal dismissed
CATCHWORDS:	Criminal law - sentencing - principles - Drug Court
LEGISLATION CITED:	Drug Court Act Criminal Appeal Act Crimes (Sentencing Procedure) Act
CASES CITED:	R v Ebsworth [2002] NSWCCA 465 R v Henare [2003] NSWCCA 376
PARTIES :	Regina v Dusan Pavicevic
FILE NUMBER(S):	CCA 60470/03
COUNSEL:	A Francis - Applicant P Ingram - Crown
SOLICITORS:	B Sandland - Applicant S Kavanagh - Crown

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2001/0045
LOWER COURT JUDICIAL OFFICER :	Milson DCJ