Regina v Vickovic

[2006] NSWCCA 231

CITATION:	Regina v Vickovic [2006] NSWCCA 231
HEARING DATE(S):	21 June 2006
JUDGMENT DATE:	3 August 2006
JUDGMENT OF:	Giles JA at 1; Grove J at 2; Hidden J at 58
DECISION:	CROWN APPEAL DISMISSED
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - DRUG COURT - CROWN APPEAL AGAINST FINAL SENTENCE - RESPONDENT "GOLD MEDAL" GRADUATE FROM DRUG COURT PROGRAMME - NON CUSTODIAL IMPOSITIONS - SUCH IMPOSITIONS NOT MANDATORY BUT NO MISCARRIAGE OF SENTENCING DISCRETION IN SO ORDERING - DISCUSSION CONCERNING APPEALS FROM DRUG COURT
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Drug Court Act 1998
CASES CITED:	Everett v The Queen 1994 181 CLR 295 Griffiths v The Queen 1977 137 CLR 293 Malvaso v The Queen 1989 168 CLR 227 R v Ohar 2004 59 NSWLR 596 R v Sheedy, unreported, Drug Court, 17 February 2003 R v Toman [2004] NSWCCA 31 R v Trindall 2002 133 A Crim R 119
PARTIES:	Regina v Tommy Vickovic
FILE NUMBER(S):	CCA 2005/2132
COUNSEL:	P. Ingram (Crown/Appellant) G. Bashir with M. Moody (Respondent)
SOLICITORS:	S. Kavanagh (DPP) S. O'Connor (Legal Aid)
LOWER COURT JURISDICTION:	Drug Court
LOWER COURT FILE NUMBER(S):	2004/107
LOWER COURT JUDICIAL OFFICER:	Judge Barnett
LOWER COURT DATE OF DECISION:	24/01/05 12/09/05
LOWER COURT MEDIUM NEUTRAL CITATION:	N/A

2005/2132

GILES JA
GROVE J
HIDDEN J

3 August 2006

REGINA v TOMMY VICKOVIC

Judgment

1 GILES JA: I agree with Grove J.

2 GROVE J: This is a Crown appeal, the notice of appeal in respect of which asserted a single ground that sentence imposed by “his Honour Judge Barnett, a judge of the District Court of New South Wales, at Parramatta Drug Court on 12 September 2005” is manifestly inadequate. The notice specified the appearance of the respondent, Tommy Vickovic, for final sentence on twenty six charges to which he had pleaded guilty. The notice recorded that on twenty of these he was sentenced to “Section 9 bond for six months with supervision” and on the remaining six to “Section 9 bond for two years with supervision”. A bond to be of good behaviour for a term not exceeding five years may be ordered in lieu of imposition of imprisonment pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act).

3 It is necessary to trace some history of the dealing with the offences. On 1 July 2004 the respondent appeared before Judge Milson at the Drug Court, Parramatta. His Honour detailed the proceedings:

“The offender before the Court is being sentenced by the Drug Court exercising the jurisdiction of the District Court in respect of six matters which are upon indictment which was preferred today and to which the offender pleaded guilty, and taking into account a number of other matters on a form 1 which was initially presented to the District Court at Parramatta on 11 March 2003, but is now being taken into account in respect of these offences, rather than other offences which were then before that Court, and which would otherwise be dealt with at this Court on another day.
I make it clear that I am cutting the sentencing process into two procedures because of the time the desire to get this offender onto the Drug Court programme, for which he has been waiting a long time, and which it is in his interest, and the community interest, commences straight away”.

4 Count 1 of the indictment charged having a machine and materials in his custody adapted for making false driver’s licences with the intention of having them accepted as genuine; counts 2, 3 and 4 charged making false driver’s licences in specified names with similar intent and counts 5 and 6 charged using a false instrument with intent to pervert the course of justice.

5 It is appreciated that his Honour perceived that the respondent should commence on a programme under the supervision of the Drug Court forthwith and his remarks in imposing “initial sentences,” which he intended to suspend for the duration of the respondent’s programme, were somewhat more wide ranging than could be comprehended within the precise terms of the counts in the indictment and did not distinguish some matters which were included on a Form 1. Nothing in the appeal will turn on this.

6 His Honour described the offences (obviously not including counts 5 and 6) as relating to preparing instruments which were used to obtain a credit card with a limit of $26,300 by way of a complex fraud committed on about 17 September 2001 on which date the respondent attended a bank with a “fraudulent” driver’s licence and a “fraudulent” birth certificate in support of an application for the credit card. The respondent was arrested and searched. He was in possession of further “fraudulent” licences. His premises were later searched and the implements mentioned in count 1 were found together with false licenses in the names mentioned in counts 2, 3 and 4 as well as other incriminating material. The relevant Form 1 contained eight charges similar to those in counts 2, 3 and 4 relating to false licences in various names, and three charges which in fact related to the attempt to obtain the credit card at the bank by use of the licence and birth certificate.

7 Counts 5 and 6 related to two false documents, a letter of employment and medical report respectively, which were presented to Campbelltown District Court with other genuine material in support of mitigation of penalty in relation to “fraud matters” to which the respondent had pleaded guilty.

8 Judge Milson imposed a sentence of imprisonment for three years six months on count 1, taking into account the matters on the Form 1 and for each of counts 2, 3 and 4 a sentence of imprisonment for two years to be served concurrently and concurrently with the sentence on count 1. On counts 5 and 6 he sentenced the respondent to imprisonment for two years to be served concurrently with each other but cumulative upon the sentence imposed on count 1. In accordance with his already stated intention he suspended the sentences for the duration of the respondent’s drug programme.

9 Thereafter, as an apparent consequence of “cutting the sentencing process into two procedures” as Judge Milson stated, the respondent appeared before Judge Barnett on 24 January 2005 for initial sentences which his Honour described as “essentially matters not dealt with” on 1 July 2004.

10 His Honour described his function on 24 January in these terms:

“He received on that day (1 July 2004) an Initial Sentence in relation to a large number of matters that were matters that were dealt with on Indictment and the Court in order to get him onto Program took the view that he should not be delayed in entering onto Program in relation to the summary matters and so today I am dealing with a large number of summary matters, although number 22 on the list is a breach of a District Court bond”.

11 The summary matters were referred to by his Honour in accordance with a numerical sequence which had apparently been used to tabulate the offences. Fifteen offences arose out of a variety of uses of false instruments to obtain money from the ANZ Bank. Four offences related to the use of false instruments to obtain, and eventually sell, what amounted to a stolen Jet Ski.

12 The matter which his Honour described as a breach of a District Court bond concerned an order being imposed on an appeal to the District Court from the Local Court against a penalty for an offence of using a false instrument.

13 There were two further offences of driving an uninsured vehicle and driving an unregistered vehicle which his Honour recorded “the offender has arranged to have …. referred to the Drug Court for initial sentence” ( the traffic offences).

14 With the exception of the traffic offences his Honour imposed concurrent sentences comprising a non parole period of nine months and a balance term of three months (expressed as a total term of twelve months) for all offences. On the traffic offences he imposed fines of $150. All impositions, including the fines, were suspended “to enable the offender to continue with his drug programme”. The respondent was also ordered to pay $37,000 compensation to the ANZ Bank and this order was similarly suspended.

15 On 12 September 2005 the respondent appeared again before Judge Barnett for final sentence. His Honour made introductory remarks on sentence as follows:

“There are a large number of matters for final sentence pursuant to the Drug Court legislation. This offender is to graduate from his Drug Court programme tomorrow. Graduation on a Drug Court programme is not something that happens lightly and it is the gold medal standard of this court. Whilst a lot of people might achieve a non-custodial sentence at the end of the day following completion or partial completion of their programme, graduation is reserved for those people who complete the requirements of the legislation and the policies of this court.
The legislation is beneficial legislation that is specifically targeted towards persons who offend by committing criminal offences as a result of their drug addictions. The aims of the legislation are that a person should desist from offending and be persuaded to turn from a lifestyle that is dependent upon crime to finance a drug habit, to a lifestyle that is drug free and crime free.
Graduation is something that, as I said, only a small percentage of the total number of participants achieve”.

16 It was common ground in the appeal that the “gold medal” standard for graduation was the highest available standard within the Drug Court operations and that the respondent was among the very small number who had achieved it.

17 On the six indicted counts, his Honour ordered the entry by the respondent of the good behaviour bonds for two year terms and on the twenty summary matters the good behaviour bonds for six month terms. He confirmed the order for payment of compensation and the fines for the traffic offences.

18 The appeal is brought in connection with the good behaviour bonds ordered in the twenty six matters abovementioned.

19 In a written submission on behalf of the respondent it was initially submitted that a preliminary point needed to be determined, namely, whether there was jurisdiction in the Court to hear and determine appeal against the sentences imposed by “Judge Barnett sitting as the Local Court”, that is, in the twenty summary matters. Ms Bashir of counsel for the respondent later drew attention to R v Ohar 2004 59 NSWLR 596 and withdrew that submission.

20 Appeals to this Court from a drug court are governed by some statutory provisions which need to be read in conjunction.

21 The jurisdiction of the Drug Court is vested by s 24 of the Drug Court Act 1998, namely:

“24(1) The Drug Court has the following jurisdiction:
(a) the criminal jurisdiction of the District Court,
(b) the criminal jurisdiction of a Local Court,
(c) such other jurisdiction as is vested in the Drug Court by this or any other Act.
(2) For the purpose of enabling it to exercise its jurisdiction, the Drug Court has the following functions:
(a) all of the functions of the District Court that are exercisable in relation to its criminal jurisdiction,
(b) all of the functions of a Local Court that are exercisable in relation to its criminal jurisdiction, including all the functions exercisable by a Magistrate or Justice under the Criminal Procedure Act 1986 or the Bail Act 1978.
(c) such other functions as are conferred or imposed on it by or under this or any other Act.
(3) For the purposes of section 98 (1) (b) and (c) of the Crimes (Sentencing Procedure) Act 1999:
(a) the Drug Court is a court of like jurisdiction in relation to the District Court, and
(b) the Drug Court is a court of superior jurisdiction in relation to a Local Court”.

22 The imposition of final sentence in the exercise of the jurisdiction of the Drug Court is performed pursuant to s 12 of the Act:

“12 (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 original sentence related, or
(b) by making an order confirming the original 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”.

23 Provision is made by the Criminal Appeal Act 1912 in s 5AF for a person convicted in the Drug Court to appeal in relation to a final sentence determined pursuant to s 12 of the Drug Court Act. Section 5AF incorporates s 5AA but expressly provides that the power of the Court is to be exercised by a single judge of the Supreme Court. Section 5AA deals with appeal against conviction but parenthetically includes appeal against “any sentence imposed”. As noted, s 5AF is a provision governing appeal by the convicted person.

24 The power of the Court to entertain an appeal by the Crown is vested by s 5D namely:

“(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper”.

25 The Crown is a party when proceedings have been instituted by or on its behalf (s 5D (2)).

26 A “court of trial” means any court from whose finding, sentence, order, or other determination, a person is by this Act entitled to appeal or to apply for leave to appeal. (s 2 (1)).

27 “Sentence” includes any good behaviour bond (s 2 (1)).

28 As stated, s 5AF is a provision which entitles a person to appeal pursuant to the Criminal Appeal Act against sentence in the Drug Court and the Drug Court is therefore within the scope of the definition of “a court of trial”. It was not disputed that the Crown was a party to the prosecution of the proceedings against the respondent in the Drug Court and it follows that the appeal by the Crown to this Court is to be heard by three or more judges (s 3 (1)).

29 The apparent anomaly that an appeal by an offender will be heard by a single judge whereas an appeal by the Crown will be heard by a full bench has been the subject of previous comment: R v Toman [2004] NSWCCA 31.

30 The stance of the respondent in withdrawing the submission as initially made was correct.

31 At the hearing of the appeal a considerable amount of material was received, by consent, to demonstrate practices engaged in by the Drug Court in the exercise of its unique jurisdiction. Attention was drawn to the Second Reading Speech of the Minister introducing the Bill which became the Drug Court Act when he said, inter alia:

“In short, the programme will offer offenders a choice between gaol and the Drug Court programme based on intensive case management, judicial supervision and rehabilitation”.

32 His Honour found that the respondent had spent fourteen months on the programme. During that period he was not required to serve any sanctions. He referred to the very positive pre sentence report which he impliedly adopted. That report recorded that the respondent was employed on a full time basis (a fact confirmed by other evidence), was residing with his wife and children in a Sydney suburb, had been demonstrated to have remained drug free, and had stated that he did not wish to return to the use of illegal substances and was aware of available avenues of help should he feel the need.

33 Included in the documentation was a “programme chronology” which recorded in brief form the ascent of the respondent from the situation in which he was when admitted to the programme on 1 July 2004 to his qualification for gold medal graduation on 5 September 2005.

34 The appeal was in fact heard on 21 June 2006 by which time the good behaviour bonds of six month term ordered in respect of twenty offences had been served and were expired. Whilst there is available power for this Court nevertheless to intervene, it would be unusual for this to happen in such circumstances. There is ample authority supporting the proposition that appeals by prosecutors against sentence should be rare: Griffiths v The Queen 1977 137 CLR 293 @ 310; Malvaso v The Queen 1989 168 CLR 227 @ 234; Everett v The Queen 1994 181 CLR 295 @ 299-300. Whether, in practice, the numbers of such appeals are rare does not detract from the existence of an underlying restraint against intervention. I would not, in any event, allow the appeal in respect of those twenty expired sentences.

35 In Griffiths, Barwick CJ commented:

“On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General (or, now by subsequent amendment the Director of Public Prosecutions) should be a rarity brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”.

36 There was some obscurity attaching to identification of a matter of principle which was desired to be elucidated in this appeal. In affidavits filed there were differing recollections about a pre (final) sentence conversation between the solicitor appearing for the prosecution and the solicitor representing the respondent, but in the event, such contradiction as might have been raised was not read. I mention the matter only because in response to an enquiry concerning what the Crown was seeking in the appeal, it was said that this Court would not be constrained by anything done or said by the person appearing for the Director of Public Prosecutions in the Drug Court. If “constrained” means “bound” that would be clearly right and this appeal is unnecessary to establish that point. Whether the Court would act with restraint in the light of something which might have been said at first instance would, in every case, depend upon the particular circumstances.

37 As I understood the Crown position ultimately adopted, it was that should the Crown appeal succeed it would not contest the propriety of the substitution of impositions of imprisonment suspended pursuant to s 12 of the Sentencing Act. There was some discussion concerning the possible classification of a suspended sentence as a “custodial option” in distinction from “non custodial” nature of the good behaviour bonds which were ordered. It is noteworthy that both s 9 and s 12 are located in Part 2 Division 3 of the Sentencing Act which is titled “Non Custodial Alternatives”.

38 Not all the grounds which were originally advanced in written submissions were pressed, and it is necessary only to deal with those which were not abandoned.

“GROUND 1: The learned sentencing Judge erred by holding that the Crown representative at final sentence had made a submission that final sentences that were suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999 would be within the ambit of the appropriate exercise of sentencing discretion in relation to these offences.”

39 In his remarks on final sentence Judge Barnett recorded that he had been urged by the Crown to impose a prison sentence which would be suspended. A complaint on appeal was that the submission in fact made was that “a custodial element” should be part of the final sentences. That submission needs to be gauged in its context. At the time, the prosecutor handed up a copy of the judgment of Judge Milson in the case of R v Sheedy (unreported, Drug Court 17 February 2003). That was a case in which a sentence of imprisonment was imposed and then suspended. It would have been appreciated by all present before Judge Barnett that the respondent was on the eve of “gold medal” graduation. It is significant therefore that guidance was being offered by the prosecutor from a case which included the following:

“You have completed a programme that not many people can complete. You have done it flawlessly and very few do that. You have proved that you are capable of good things in your life, and it is our wish that you prove this for the rest of your life. Nothing would give us more pleasure to know that you never go to prison again, that you never get into trouble. You will not be doing it for us, of course, you will be doing it for yourself, for your child and for your family.
I congratulate you on what you have done and it is my great pleasure now to give you a certificate of graduation from the Drug Court programme.
For the last time, congratulations, well done.
OFFENDER: Thank you.
HIS HONOUR: Mr Sheedy, if you sign the bond in the Drug Court Registry you will be free to go, unless there is something you want to say before you do.
OFFENDER: I’d just like to thank you.
HIS HONOUR: Okay, well you make the most of it. You’ve got the chance, you do that.
OFFENDER: Thanks.
HIS HONOUR: Thank you. Well done”.

40 This transcription, of course, manifests some of the informality which attaches to the exercise of this special jurisdiction.

41 Having regard to views expressed in the discussion abovementioned, it is possible that a suspended sentence as a “custodial element” was what was intended to be conveyed. That possibility would be consistent with referring his Honour to Sheedy, indeed, the alternative would involve an inherently self-contradictory submission.

42 I would reject the complaint made under this ground.

“ GROUND 2: The learned sentencing judge erred by holding that the decision of Regina v Tindall and Gunton (1994) 74 A Crim R 275 provided guidance that was appropriate to the operation of the Drug Court Act 1998”.

43 The Crown contended that error was detectable from these remarks of his Honour:

“The case of R v Trindall and Gunton (1994) 74 ACR at 275 provides some guidance. The court held in that case pursuant to s 11 of the Crimes (Sentencing Procedure) Act an adjournment of the sentencing proceedings under s 11 should only be granted where there is a real expectation founded upon solid grounds, rather than a mere sentimentality, that rehabilitation and reform are likely to be achieved and such a remand should only be granted where, in the event that rehabilitation and reform are achieved, it would be appropriate to impose a non-custodial sentence.
By quoting this case I am not relying on the issues the case raise regarding the vetting of an applicant. The Drug Court is bound by the various provisions in the Drug Court Act in this regard, and I have already referred to that process.
My purpose in quoting this case is that in my view it supports the contention that, an offender once placed onto a Drug Court Programme by the Court, the Court has thereby created (an expectation) in that offender (if he does) everything the Court requires of that offender, that the offender will not receive a gaol term upon graduation from a programme”.

44 The Crown submitted that it was possible that his Honour intended to refer to R v Trindall 2002 133 A Crim R 119 but that, in either case, “the same error was involved”.

45 It was submitted that “it was a fundamental error of principle in relation to the interpretation of the Drug Court Act 1998 to limit participants to those whom it may reliably be predicted that a non custodial sentence will be appropriate”.

46 This submission is academic in the sense that his Honour was not dealing with admission to the programme but with the respondent who was about to graduate from it. No issue arises which requires this Court to opine upon the circumstances which the Drug Court ought take into account when determining the admission of an offender to its programmes.

47 Insofar as his Honour spoke of an expectation, it was a comment justifiable by reference to the statements of purpose during the parliamentary passage of the legislation and, importantly I would add, by the statistical material placed before the Court showing the absence of imposition of full time custodial sentences upon successful graduates. It can be further noted that his Honour spoke of an expectation and not of an entitlement.

48 It was submitted that his Honour’s remarks revealed an erroneous approach which involved considering himself bound to reject the option of imposing a gaol term upon a graduate from the Drug Court programme. As the remarks quoted show, he was doing no more than observing the likely expectation of an offender and the significance of the programme operated by the Drug Court and, impliedly, its practices in provoking such an expectation. I do not interpret the remarks as demonstrating that his Honour had failed to recognize that it was his duty to exercise an independent sentencing discretion. The gravamen of his remarks simply recognized the undeniable fact that that discretion had to be exercised in the context of a jurisdiction in which particular factors, not necessarily germane to the exercise by other courts of criminal jurisdiction, were required to be taken into account.

49 No error has been shown and ground 2 should be rejected.

“ GROUND 5: The learned sentencing judge erred by failing to impose final sentences in conformity with the principles identified by the High Court of Australia in either Pearce v The Queen (1998) 194 CLR 610 or Johnson v The Queen (2004) 205 ALR 346. ”

50 The essence of the authorities quoted in the ground includes a requirement that a sentencing judge dealing with multiple offences consider the relevant objective and subjective factors concerning the individual offences. So far as it was submitted that his Honour failed to impose final sentences in relation to each offence, he did so – he did not impose one sentence for all offences. The submission came down to a submission that his Honour had failed “by cumulation or partial cumulation” of the sentences, to impose an aggregate final sentence which reflected the totality of criminality involved.

51 It is not the case that cumulation or partial cumulation is essential in every case and if appropriate, there may be a sufficient reflection of criminality in wholly concurrent sentences. This was made clear in the joint judgment in Pearce @ 624:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality”.

52 The submission otherwise fell under Ground 6.

53 Ground 5 is not made out.

“ GROUND 6: The learned sentencing Judge erred by imposing final sentences that were individually and collectively manifestly inadequate ”.

54 As I have previously pointed out, Judge Barnett was exercising a unique jurisdiction. That does not mean that final sentences cannot be assessed as manifestly inadequate but it does mean that in considering whether manifest inadequacy has been demonstrated, attention must be paid to the special context in which sentencing discretions are exercised in the Drug Court. No error in his Honour’s approach has been demonstrated. Whilst it is always open to an offender to give evidence of rehabilitative achievements between commission of crime and appearance for sentence, a final sentence in the Drug Court involves compliance with a statutory mandate to give effect to the nature of the offender’s participation in the Drug Court programme (Drug Court Act s 12 (2) (a)).

55 There was no challenge to the “gold medal” achievement of the respondent in this regard.

56 The sentences imposed by Judge Barnett lay within the boundaries of the sound exercise of his discretion.

57 I would dismiss the Crown appeal.

58 HIDDEN J: I agree with Grove J.

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