ST ALDER, Kevin Leslie v REGINA

[2006] NSWCCA 287

CITATION:	ST ALDER, Kevin Leslie v REGINA [2006] NSWCCA 287
HEARING DATE(S):	5 September 2006
JUDGMENT DATE:	5 September 2006
JUDGMENT OF:	Giles JA at 1; Sully J at 24; Latham J at 25
EX TEMPORE JUDGMENT DATE:	09/05/2006
DECISION:	Leave to appeal in relation to sentence granted. Appeal dismissed.
CATCHWORDS:	Sentencing - plea of guilty - whether sentenced contrary to indication of likely sentence prior to plea - whether sentence manifestly excessive - no question of principle.
PARTIES:	Kevin Leslie St Alder - Appellant Crown - Respondent
FILE NUMBER(S):	CCA 2006/1501
COUNSEL:	Appellant in person P Barrett - Crown
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) - Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 05/11/0418; 05/11/0419
LOWER COURT JUDICIAL OFFICER:	Blanch CJDC
LOWER COURT DATE OF DECISION:	26 September 2005 (Sentence)

CCAP 1501/2006
DC 05/11/0418
DC 05/11/0419

GILES JA
SULLY J
LATHAM J

Tuesday 5 September 2006

ST ALDER, Kevin Leslie v REGINA

Judgment

1 GILES JA: This is an application for leave to appeal against a sentence imposed by Blanch CJDC in the District Court on 26 September 2005.

2 The sentence was imposed following the applicant’s plea of guilty on 15 August 2005 to one count of maliciously destroying property by fire, an offence under s195(b) of the Crimes Act 1900 carrying a maximum penalty of 10 years imprisonment. In sentencing the applicant his Honour took into account an offence on a Form 1 of maliciously damaging property, an offence under s195(a) of the Crimes Act carrying a maximum penalty of five years imprisonment. The applicant was sentenced to imprisonment for a non parole period of 2 years to commence on 26 October 2003 and to expire on 25 October 2005, with an additional term of 2 years imprisonment to expire on 25 October 2007. The date of the commencement of the sentence was backdated to 26 October 2003 to take into account a broken period of 1 year and 11 months for which the applicant had been in custody prior to sentencing.

3 The facts of the offence can be stated quite briefly.

4 The applicant was in a de facto relationship with his partner for a number of years. There were four children from the relationship. The relationship ended in May 2002, and the applicant and his former partner were involved in contested Family Law proceedings. Their relationship deteriorated quite significantly.

5 At about 12:50 a.m. on the morning of 9 February 2003 the applicant entered certain premises at Edgecliff through a window by breaking the glass, then lit a fire in the top floor bedroom of the premises. The premises were owned by an aunt of the former partner, and the former partner and the children had spent some time at the premises. The premises were significantly damaged. This was the arson offence in the count on the indictment. The offence on the form one was damage to a pane of glass on another occasion, 28 August 2004.

6 There were two grounds of appeal. One was that the sentence imposed by Blanch CJDC was manifestly excessive. The second was that Blanch CJDC was in error “ … in not giving the sentence he had indicated earlier, prior to sentencing and gave no reasons for raising the head sentence."

7 It is convenient to take the second of these grounds first. What occurred was this.

8 On 7 July 2005, at a time when the charges against the applicant were set down for hearing in October of that year, an application was made to Blanch CJDC for bail. The circumstances of the bail application need not be described; bail was refused. In the course of the bail application there was reference to the period which the applicant had spent, and until the October trial would spend, in custody. His Honour said in relation to a submission drawing his attention to the period of time that the applicant had spent in custody:

"HIS HONOUR: I am very conscious of that but part of that, of course, is again this obsessive aspect of his character where he got obsessive by going to the Court of Criminal Appeal in challenging this thing under 5F and ‘ I will stay in jail if I have to forever while I get this all sorted out’. Now that is not really a normal reaction. I mean he became obsessive about that. It is a matter -- the main matter of concern to me is the fact that if his being in jail for 605 days and the maximum penalty in relation to these offences is such that I would expect by and large that there is a strong argument that he shouldn't have any greater period in custody even if he got convicted and the trial has been put off to October……." (emphasis added)

9 As I have indicated, the applicant pleaded guilty on 15 August 2005. While the details are unclear, it seems that as at 7 July 2005 the indictment contained three counts but by August 2005 had been reduced to one count and the Form 1.

10 After the acceptance of the plea on 15 August 2005, in the discussion concerning the date for submissions on sentence Blanch CJDC said this:

“HIS HONOUR: I will stand it over to 21 September. What I am thinking of by way of an indication is three years with a two-year non parole period. It really comes down to a question of the manipulation of the non parole period, whether that can be reduced, to the period that he will have been in custody by that time. That is dependent on two things, the first being the psychological material and what it says which I anticipate will establish special circumstances, and, secondly, his criminal record. I don't think I have seen it or if I’ve seen it I have forgotten about it."

11 The essence of the submission before us was that his Honour had held out to the applicant a sentence which he had in mind, on the faith which the applicant had pleaded guilty, but that his Honour had departed from that indication in the sentence which he in fact imposed.

12 It does not seem to me that that is correct. On 7 July 2005 His Honour's observation could at best suggest contemplation that the applicant should not have any greater “period in custody" than the period for which he had been in custody, or perhaps more correctly would have been in custody by the time of the trial then anticipated for October 2005. By "period in custody" on my understanding His Honour meant the non parole period. There was no departure from that.

13 In his observations on 15 August 2005 his Honour mentioned a 3 year sentence with a non parole period, but he made plain that that was dependent on matters yet to be put before him and that the appropriate sentence would depend on what was yet to come. There were many contingencies. The point is that the only indication on which it could be said that the applicant relied in pleading guilty, since he had already pleaded guilty prior to the observations on 15 August 2005, was an indication in relation to the period in custody, that is the non parole period. There was no departure in that respect (even if that be the correct language) in the sentence which was in fact imposed.

14 I turn then to the ground of appeal that the sentence was manifestly excessive. In his written submissions the applicant said that the sentence was excessive in the light of his early plea of guilty, his remorse and contrition highlighted by the psychological evaluation, his good behaviour whilst in custody, the voluntary work he had undertaken whilst in the community and the attachment and support he had given to his children whilst at liberty.

15 Blanch CJDC fully recognised the early plea of guilty, saying that the applicant was entitled to the maximum discount provided for such a plea because it was, in the applicant's case, both an expression of remorse and of significant utilitarian value. His Honour referred also to contrition addressed in the psychologist's report, describing it as indicating "a significant degree of contrition so far as the offender is concerned". His Honour accepted that the applicant had "relatively little in the way of criminal history". He did not specifically refer to behaviour of the applicant whilst in custody prior to the sentencing hearing, but there is nothing to indicate that he regarded the applicant as wanting in that respect.

16 Blanch CJDC certainly made note of the applicant's strong emotional attachment to his children. This was not entirely in accordance with the submission to which I have referred, because his Honour said that the applicant was having difficulty making objective judgments about his conduct, the context being that his judgment was affected by his attachment to his children. In his remarks on sentence the judge referred to the necessity that the applicant be released under terms of supervision which would guarantee that he had an objective attitude towards his children and the break up of the relationship and, in due course, return to normal life in the community. This view of the applicant's position was well borne out in the facts of the offence and the psychological report.

17 It does not seem to me that there was any error in the regard paid by the judge to the various factors to which the applicant referred in his submissions, nor do I consider that in any other respect it appears that his Honour's sentencing discretion erred in coming to the periods of custody and possible release on parole to which he referred.

18 It follows that the application to this Court for leave to appeal in relation to this sentence should, in my opinion, be granted as to leave but dismissed as to the appeal itself.

19 That is not, however, an end to the matters to which I wish to refer.

20 In the course of his submissions the applicant described at some length a number of events involving his relationship with his former partner and his children and his concern for his children, and a course of events by which he was refused parole when he became eligible for release to parole on 25 October 2005, then refused on a later occasion, then released on parole in August 2006, but arrested for breach of the parole conditions today.

21 The circumstances in which all these things occurred are not properly before us, and we do not have proper information as to them. Nor is it within the power of this Court, the Court of Criminal Appeal, to do anything about the applicant's complaints, which I do not belittle by summarising them as that he has been very harshly treated in these respects. Whether or not that is correct is, for reasons I have indicated, not a matter on which we can pass judgment, but there do appear to be grounds for concern that the applicant should be able to move a Court for a review of, at least, the latest episode of his arrest for breach of the parole conditions.

22 I am glad to say that the Crown Prosecutor has properly offered to intervene and take steps to put the applicant in touch with a Public Defender, so that someone with the requisite abilities may consider what courses are available to the applicant. I consider it appropriate to record that it seems to me highly desirable that steps be taken so that the applicant can be properly advised as to, and if so advised take, action in relation to the predicament in which he presently sees himself.

23 Having said that, in my opinion the orders should be made that leave to appeal in relation to sentence be granted but the appeal dismissed.

24 SULLY J: I agree.

25 LATHAM J: I agree.

oOo