Regina v Wayne Raymond MOULE

[2003] NSWCCA 29

CITATION:	REGINA v Wayne Raymond MOULE [2003] NSWCCA 29
HEARING DATE(S):	24/2/03
JUDGMENT DATE:	28 February 2003
JUDGMENT OF:	Bell J at 1
DECISION:	Appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 Drug Court Act 1998 Drug Misuse and Trafficking Act 1985 Poisons and Therapeutic Goods Act 1966
CASES CITED:	Lowe v The Queen (1984) 154 CLR 606 R v Alexander (2000) 118 A Crim R 350 R v Readman (1990) 47 A Crim R 181
PARTIES :	Regina Wayne Raymond MOULE (Applicant)
FILE NUMBER(S):	CCA 60495/02
COUNSEL:	RA Hulme SC (Crown) No appearance by unrepresented applicant
SOLICITORS:	SE O'Connor No appearance by unrepresented applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2001/0106
LOWER COURT JUDICIAL OFFICER :	Milson DCJ

60495/02

BELL J

Friday 28 February 2003

REGINA v Wayne Raymond MOULE

Judgment

1 BELL J: This is an appeal brought pursuant to s 5AF and s 5AA of the Criminal Appeal Act 1912 against sentences imposed upon the appellant in the Drug Court on 19 June 2002.

2 Appeals brought pursuant to s 5AF of the Criminal Appeal Act are heard by a single judge of the Supreme Court exercising the power of the Court of Criminal Appeal to hear and determine appeals under the section. The nature of these appeals was discussed by Whealy J in R v Alexander (2000) 118 A Crim R 350.

3 The appeal was listed for hearing on Monday 24 February 2003. On that date when the matter was called on there was no appearance by the appellant. I was informed by the Crown that the appellant had been released on parole a matter of days earlier. An examination of the Registry file showed a document, purportedly signed by the appellant while in custody, containing an acknowledgement of receipt of a notice of the date fixed for hearing. I was also informed that the Crown had sent a letter to the appellant, enclosing a copy of the Crown Prosecutor’s written submissions, to an address which had been given by the appellant to the Probation and Parole Service as his place of residence. That letter included reference to the date fixed for the hearing of this appeal.

4 I did not proceed to deal with the appeal on the day fixed for hearing. I stood the matter over to today noting the Crown’s undertaking to make further efforts to contact the appellant by letter and to inform him of the adjourned date.

5 The Crown Prosecutor has informed me that at his request Senior Constable Portelli attended the address notified by the appellant to the Probation and Parole Service on the evening of 25 February 2003 where he spoke with a person who identified himself as the appellant’s uncle. This person did not know of the appellant’s present whereabouts.

6 I was further informed of inquiries that had been made by the Crown of the Probation and Parole Service. The appellant has not attended for interviews with that service. I consider the appropriate course is to determine the appeal upon the written submissions earlier filed by the appellant.

7 On 24 July 2001 the appellant was convicted before Senior Judge Murrell of six offences all of which were committed on 11 February 2001. Those offences comprised one count of malicious damage to property contrary to s 195 of the Crimes Act; one count of being carried in a conveyance without the consent of the owner contrary to s 154A of the Crimes Act, one count of possession of a prescribed restricted substance contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966, one count of break and enter with intent contrary to s 113 of the Crimes Act, two counts of break and enter and steal contrary to s 112(1) of the Crimes Act. The offence charged in count one carries a maximum penalty of five years imprisonment. The offence charged in count two carries a maximum penalty of ten years imprisonment. The offence charged in count three carries a maximum penalty of six months imprisonment. The offence charged in count four carries a maximum penalty of ten years imprisonment. The offences charged on counts five and six carry a maximum penalty of fourteen years imprisonment.

8 The applicant pleaded guilty to each of the above six offences and was convicted and dealt with in accordance with the provisions of s 7 of the Drug Court Act 1998.

9 Senior Judge Murrell imposed the following sentences upon the applicant. In relation to each of the offences of break, enter and steal and break and enter with intent to steal imprisonment for fifteen months and two weeks. Her Honour took into account the circumstance that the appellant had spent five months and two weeks in custody prior to the date of sentence. She would otherwise have imposed a sentence of twenty-one months imprisonment in each case. In respect of the offence of being carried in a conveyance without the consent of the owner her Honour imposed a sentence of twelve months imprisonment. In relation to the offence of malicious damage to property a sentence of four months imprisonment was imposed. In relation to the offence of possession of a prescribed restricted substance a sentence of one months imprisonment was imposed. Each sentence was expressed to be concurrent with the other sentences. Her Honour then directed that for the duration of the Drug Court program the execution of the appellant’s sentence was to be suspended.

10 On 23 May 2002 Senior Judge Murrell terminated the applicant’s Drug Court program pursuant to s 10(1)(b) of the Drug Court Act. Her Honour found there was “no useful purpose to be served in the drug offender’s further participation” in the program.

11 Section 12 of the Drug Court Act provides:

“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 II 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.”

12 On 19 June 2002 the appellant came before Judge Milson sitting in the Drug Court for re-consideration of the sentences that had been fixed by Senior Judge Murrell on 24 July 2001. In addition his Honour sentenced the appellant in relation to two offences that occurred during the currency of the Drug Court program. The first of these was an offence of larceny contrary to s 117 of the Crimes Act 1900 committed on 6 December 2001 and the second was an offence of possess prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985. This latter offence was committed on 12 December 2001.

13 The larceny offence related to the theft of children’s clothing. The offence was committed jointly with the appellant’s partner, Anne Keating. His Honour accepted that the motive for the offence was that the couple were stealing clothing for their children. The possession of prohibited drug related to the appellant’s possession a quantity of cannabis.

14 Judge Milson set out the facts relating to the six offences committed on 11 February 2001 as follows:

“The offences were all part of the one course of conduct. The offender, and the co-offender, who is his partner, and also a Drug Court participant, gained possession of a vehicle which had been taken without the consent of the owner, and in the early hours of a Sunday morning, and committed a number of offences utilising that vehicle.
Around midnight they broke into a chemist shop at Narwee by throwing a large rock through a glass door, and stole bottles of Temazepam, each worth $25. The offence was recorded on video tape, they also took some cash.
About 2:00am, they broke into another chemist store at Riverwood and stole shampoo, razorblades and further packets of Temazepam. At 2.30 they broke into a mixed business at Peakhurst with intent to steal, but, in fact, stole nothing from these premises. A few moments later, apparently, an (sic) endeavour to gain access to the premises of a chemist at Lugarno, a shop window was damaged.
The offences were committed with little planning. They were all related to the offenders addition to heroin and benzodiazepines, in that he needed money to purchase the heroin, and he stole the benzodiazepines. He has little recall of the events of the evening because he was drug-affected at the time.”

15 Judge Milson observed that he was required to take into account the nature of the appellant’s participation in the Drug Court program. He found that the appellant’s progress had not been particularly good. The appellant had been subject to the program between 24 July 2001 and 23 May 2002. During that period he spent a little over two months (sixty-nine days) in custody serving sanctions arising out of breaches of the program or while waiting to enter various programs. His custody was principally referable to sanctions imposed for breaches of the program such as the repeated use of drugs, failing to supply urine samples and failing to attend counselling sessions.

16 Judge Milson found that the appellant’s progress on the program had been impeded by his continuing chaotic lifestyle.

17 The Judge took into account that the appellant and Ms Keating had been in a domestic relationship for a number of years and that they had two children. Each was committed to the relationship and this was a significant factor in their lives, notwithstanding the difficulty that each had experienced in overcoming addiction to drugs.

18 The appellant detailed aspects of his tragic life in a letter that Judge Milson took into account. This included that the applicant’s mother had committed suicide when he was aged seven. His father was frequently absent overseas in connection with business commitments and the applicant had little supervision.

19 The appellant’s criminal record need not be detailed for the purpose of these reasons. It is a lengthy one dating back to 1980 and it includes a number of convictions for offences in respect of which the appellant was sentenced to serve terms of imprisonment.

20 Significantly, Judge Milson noted that the appellant had been sentenced with effect from 16 July 2000 to a term of twelve months imprisonment with a non-parole period of nine months in respect of two counts of driving a conveyance without the consent of the owner. The offences committed on 11 February 2001 were committed at a time when the appellant was at liberty on parole.

21 Judge Milson observed that the two offences committed while the appellant was on the Drug Court program were relatively minor offences for their type, however they were made more serious by the fact that they were committed by someone who was on conditional liberty under the Drug Court program.

22 Taking these various considerations into account, and giving the appellant credit for the sixty-nine days spent in custody during the course of the Drug Court program, Judge Milson substituted for the original sentences of fifteen months and two weeks imprisonment, sentences in each case of twelve months imprisonment. Each of the other sentences imposed by Senior Judge Murrell were confirmed by Judge Milson. His Honour imposed a sentence of six months imprisonment in relation to the offence of larceny committed on 6 December 2001 and a term on one month imprisonment in relation to the offence of possessing prohibited drugs committed on 12 December 2001. His Honour directed that all of the sentences were to be served concurrently. In respect of the sentences of twelve months imprisonment his Honour fixed a non-parole period of nine months in each case.

23 Judge Milson declined to find special circumstances so as to depart from the statutory proportion between the sentences of twelve months and the non-parole period fixed in each case. His Honour adverted to a consideration of special circumstances. It is apparent that he determined against such a finding upon a view that it would be inappropriate to extend further leniency to the appellant.

24 The Crown Prosecutor submits that when viewed overall sentences totalling twelve months imprisonment with a non-parole period of nine months in respect of the offences committed whilst on parole, or a Drug Court program, by a person who has shown a continuing attitude of disobedience to the law, cannot be said to fall outside the range of legitimate sentencing discretion. I agree with that submission.

25 In his written submissions the appellant identified two grounds of challenge. Principally he submitted that he has a justified sense of grievance arising out of the lesser sentences imposed upon his partner, Anne Keating, in relation to the same offences. Ms Keating is a co-offender in relation to all of the subject offences save the possession of prohibited drugs for which the appellant was arrested on 12 December 2001.

26 The appellant submits that Ms Keating was sentenced to a term of eight months imprisonment at the time of her placement on the Drug Court program. The sentencing judge reduced a sentence of fourteen months that would otherwise have been imposed to take into account that Ms Keating had been a remand prisoner for a period of six months. In his written submissions the appellant complains:

“My argument is she received two thirds of my sentence initially and when final sentencing I received more than double her sentence. I understand my criminal record is very bad, but my co-accused’s is not very good either.”

27 Anne Keating was sentenced in accordance with the provisions of s 12 of the Drug Court Act to a total of four months imprisonment to date from 8 August 2002. I was informed by the Crown that this was a reduction from the initial suspended sentences totalling eight months to reflect periods of both custody and quasi-custody during the currency of her Drug Court program.

28 The Crown points to two circumstances as justifying the disparity in the sentences imposed between this appellant and Ms Keating. Firstly, the appellant’s criminal record is more extensive than the record of Ms Keating. In the Crown’s submission, as I have noted the appellant is a person whose criminal history demonstrates a continuing attitude of disobedience to the law. More significantly, the Crown relies on the circumstance that the appellant was on parole at the date of the 11 February 2001 offences.

29 In Lowe v The Queen (1984) 154 CLR 606 Gibbs CJ observed at 609:

“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”

30 The circumstance that an offence is committed while the offender is on parole is one of considerable aggravation; R v Readman (1990) 47 A Crim R 181.

31 I am not persuaded, taking into account the circumstances that differentiated the appellant from Ms Keating that the appellant could be said to have a justifiable sense of grievance such as to make it appropriate for this Court to intervene and reduce the sentences imposed upon him.

32 I consider the appellant’s submission that Judge Milson erred in failing to find special circumstances to be hopeless. The sentences imposed by Judge Milson exhibited a considerable measure of leniency. The appellant contends that at the time he was undergoing the Drug Court program he had been subject to difficulties both with respect to his housing and access to his children and that these problems contributed to his failure on the program. It is for these reasons that he invites the Court to consider that a longer parole period than one of three months was the appropriate disposition.

33 In my view to have imposed sentences in relation to the counts of break, enter and steal and break, and enter with intent to steal, with a non-parole period of less than nine months, would have been to have imposed sentences that were manifestly inadequate.

34 For these reasons I would dismiss the appeal.

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Last Modified: 03/17/2003