Regina v Vitsos

[2001] NSWCCA 528

CITATION:	Regina v Vitsos [2001] NSWCCA 528
FILE NUMBER(S):	CCA 60335/01
HEARING DATE(S):	10/12/01
JUDGMENT DATE:	10 December 2001
PARTIES :	Regina v Nicholas VITSOS
JUDGMENT OF:	Greg James J at 19; Whealy J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0037
LOWER COURT JUDICIAL OFFICER :	Armitage DCJ

COUNSEL :	L.M.B. Lamprati - Crown H. Dhanji - Applicant
SOLICITORS:	S.E. O'Connor - DDP D. J. Humphreys - Legal Aid Commission
CASES CITED:	Keong (2001) NSWCCA 416 at para 15 Andrews (2001) NSWCCA 428 at para 8 Haines (2001) NSWCCA 256 at para 16 Hamilton Hughes (2001) NSWCCA 264 at para 4 Lay (2000) NSWCCA 30 at para 21 Vireak Long 2001 NSWCCA 159 at para 15
DECISION:	I propose that leave to appeal be granted but the appeal be dismissed

60335/01

GREG JAMES J
WHEALY J


MONDAY 10 December 2001

REGINA v Nicholas VITSOS

Judgment

1 WHEALY J: This is an application for leave to appeal arising out of a sentence imposed by Armitage DCJ on 1 June 2001. The applicant pleaded guilty to five counts of break, enter and steal committed during the period 6 February 1997 and 13 July 1999. The maximum penalty for each offence is imprisonment of fourteen years. The sentences imposed were as follows: for offences committed on 2 March 1999 and 13 July 1999 the applicant was sentenced to concurrent terms of imprisonment of four years, to commence on 1 June 2001 and to expire on 31 May 2005, with a non-parole period of three years to expire on 31 May 2004.

2 In respect to the other three offences committed on 6 February 1997, 11 January 1998 and 4 March 1998, the applicant was sentenced to concurrent terms of three and a half years imprisonment, to commence on 1 June 2001, with a non-parole of two years and eight months. The applicant's earliest release date is 31 May 2004.

3 The offences involved breaking into and, in some cases, ransacking residential premises at Willoughby, Rockdale and Brighton-le-Sands. The total value of property stolen from these various escapades was $28,370. The applicant was apprehended following the matching of his fingerprints with those found at the scenes of these offences. The sole ground of appeal is that the sentencing judge erred in failing to find special circumstances warranting a lesser non-parole period and a longer period of parole. As a corollary it has been submitted his Honour failed to give reasons for his finding that there were no special circumstances.

4 An examination of the decision shows the following: first, his Honour gave close attention to the applicant's subjective circumstances. As well he reviewed the applicant's criminal record in great detail but was forced to conclude, as indeed he had to, that "the best that can be said of it is that it is of no real assistance to him other than that there are no real convictions recorded against him since 1997."

5 His Honour noted the applicant's age, being thirty-two at the time, and gave considerable attention to the two pre-sentence reports and also a report of Janet Devlin, a consultant psychologist. At page 3 of his decision his Honour referred to this material and he reviewed the fact that the offender's ability to obtain employment appeared to have been affected by his poor literary skills, the lack of a driver's licence and consistent substance abuse.

6 In relation to the report of Janet Devlin, his Honour described that as a comprehensive report. He said it was based upon a single interview with the offender at the Burwood Special Centre which occurred on 1 April 2001. He quoted Janet Devlin as saying:

"Nick had little to say about the offences for which he has pleaded guilty other than they were committed in an attempt to gain money to support his heroin addiction, an addiction with which he had struggled for over 10 years and that he was ashamed at what he had done and 'sorry for the victims'."

7 Ms Devlin went on in the report to state that it appeared to her that the applicant had been very traumatised by his father's behaviour many years ago and that he experienced a great sense of abandonment by his mother. She said the applicant had moved on to heroin at the age of seventeen and began using the drug intravenously straight away. He told Ms Devlin he had continued to use heroin on and off since but that he was then on methadone, which he had been obtaining from Regent House at Redfern.

8 His Honour then referred to the evidence given before him by the applicant and by his partner Ms Roache. His Honour said:

"I have heard evidence today from the offender himself and from his partner Ms Roache. Mr Vitsos has told me that what he said to Ms Devlin was the truth. He also said that what he told the probation officers was the truth. He said in evidence that he thinks that he does need counselling to keep him strong. He wants to educate himself and get a career. He said he does have work opportunities with his brother."

9 His Honour's conclusion in relation to all the material he had recited was, first, that his Honour took the view that the offences to which the applicant had pleaded guilty were of a serious nature. In each case a private home had been broken and entered and a considerable amount of property had been taken. Secondly, his Honour also referred to the fact that the motive behind the offences was the apparent desire by the applicant to support his drug habit.

10 Thirdly, his Honour said that in imposing sentence he took into account the pleas of guilty which had been conceded by the Crown to have been entered at the earliest possible opportunity. He took into account the contrition expressed, the evidence of Ms Devlin contained in her report and the references that had been placed before him. He also had regard to the evidence of Ms Roache. He then said that he took into account the need to deter the offender and others from committing offences of a similar nature. He specifically noted that there had been no offences since the applicant's arrest one and a half years ago. He said finally:

"I should add that it does appear to me that the offender is taking some positive steps to improve his position and that he apparently has the intention to move away from his previous lifestyle; however, I must confess that I see no reason for any great degree of optimism."

11 His Honour then imposed the sentences to which I have made earlier references. At the conclusion of the pronouncement of sentence his Honour said, "In my view there are no special circumstances." It is this brief statement that has been called in aid of the applicant's submission that error in principle has been demonstrated.

12 In my view the appeal must fail. First, a fair reading of his Honour's sentencing remarks read in their entirety shows quite clearly that his Honour gave consideration to each of the matters that might have shown the presence of special circumstances in the facts of this case. It was his Honour's ultimate view, admittedly briefly stated, that despite the positive features referred to in the evidence and the reports there was no reason for any great degree of optimism in relation to the applicant's likelihood of rehabilitation. It was a view also relevant to the issue of special circumstances.

13 Second, the question of whether there are any special circumstances warranting a variation of the statutory formula is itself a question of fact. That much is perfectly plain (see Keong (2001) NSWCCA at para 15). Grove J also approved the remarks of Howie J in Andrews (2001) NSWCCA 428 at para 8 (see also the remarks of Studdert J in Haines (2001 NSWCCA 256 para 16).

14 His Honour's remarks are particularly pertinent in relation to that aspect of the applicant's submission referred to in Hamilton Hughes (2001) NSWCCA 264 at para 4. The facts in that case, as the Crown has rightly pointed out in the written submissions, bear no true parallel to the facts in the applicant's situation. It was perfectly open, in my view, for his Honour to come to the rather pessimistic view he did in regard to the applicant.

15 It is appropriate to refer to the additional material which has been provided to the Court on the usual basis. That evidence, of course, does show a more optimistic picture for the applicant. Be that as it may, none of that material was before his Honour and is not available to this Court for the purpose of ascertaining whether his Honour fell into error in relation to the finding he made (see Lay (2000) NSWCCA 30 at para 21).

16 In relation to the complaint that his Honour did not give reasons or gave insufficient reasons, in my view there is no authority which compels this Court to find that his Honour's brief statement needed to be further amplified or that anything further needed to be said by his Honour in the context of the entirety of his decision.

17 Finally, I should say that the finding his Honour made was not only one that was open to him but one which is consistent with the view adopted by experienced judges of the District Court, namely, that in some cases the antecedents of a person coming before the Court for sentence are such that the offender may be as likely to be rehabilitated from his drug habit by being kept in custody and drug free as by being released prematurely back into the community and into the orbit of heroin traffickers (see remarks the Sully J in Vireak Long (2001 NSWCCA 159 at para 15).

18 I propose that leave to appeal be granted but the appeal be dismissed.

19 GREG JAMES J: I would add only this: the applicant has to be congratulated on what he has done to achieve literacy, to avoid drugs and to rehabilitate himself. Those matters are the basis for the trial judge’s remarks referred to by Whealy J and are confirmed in the fresh evidence produced to this Court. I would wish it to be noted we have had regard to that fresh evidence for the purposes of the appeal only in the context of considering it for use in re-sentencing in the event that error might have been shown, but we should say that having considered it for that purpose it will no doubt afford the applicant considerable assistance before the Parole Board.

20 The orders of the Court will be as proposed by Whealy J.

**********