Truss v R

[2008] NSWCCA 325

New South Wales
Court of Criminal Appeal

CITATION:	TRUSS v REGINA [2008] NSWCCA 325
HEARING DATE(S):	15 December 2008
JUDGMENT DATE:	15 December 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 2; Latham J at 3
EX TEMPORE JUDGMENT DATE:	15 December 2008
DECISION:	1. Grant leave to appeal and allow the appeal. 2.The sentence imposed on 24 August 2007 is quashed. 3.In lieu, applicant sentenced to a non-parole period of 3 years and 4 months to date from 28th February 2007, expiring on 27th June 2010, with a balance of term of 1 year and 2 months to date from 28th June 2010, expiring on 27th August 2011.
CATCHWORDS:	SENTENCE APPEAL - Break Enter and Commit Affray - failure to make allowance for time spent in residential rehabilitation program - finding of no prospects of rehabilitation open to judge - no question of principle
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	Hughes v Regina [2008] NSWCCA 48 R v Delaney (2003) 59 NSWLR 1 [2003] NSWCCA 342
PARTIES:	Timothy Truss - Applicant Regina - Respondent
FILE NUMBER(S):	CCA 2007/3952
COUNSEL:	M Johnston - Applicant P Calvert - Crown Respondent
SOLICITORS:	Steve O'Connor (Legal Aid commission) - Applicant S Kavanagh (Solicitor for Public Prosecutions) Crown Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0335
LOWER COURT JUDICIAL OFFICER:	Knox SC DCJ
LOWER COURT DATE OF DECISION:	24 August 2007

2007/3952

McCLELLAN CJ at CL
SIMPSON J
LATHAM J

15 DECEMBER 2008

TIMOTHY TRUSS v REGINA

Judgment

1 McCLELLAN CJ AT CL : I agree with Latham J

2 SIMPSON J : I agree with Latham J

3 LATHAM J : The applicant seeks leave to appeal against the sentence imposed upon him by Knox SC DCJ (the judge) on 24 August 2007 following a plea of guilty to an offence of Aggravated Break Enter and Commit Affray, pursuant to s 112(2) Crimes Act 1900, carrying a maximum penalty of 20 years imprisonment. A standard non parole period of five years applies to the offence. The circumstance of aggravation relied upon was the fact that the applicant was in company.

4 The applicant received a non parole period of three years and four months imprisonment, to date from 29 May 2007, with a balance of term of one year and two months, expiring 28 November 2011. The applicant was given credit for approximately three months of pre-sentence custody.

5 There are only two grounds of appeal, namely, that the judge erred in failing to take into account the time the applicant had spent in a rehabilitation program and that the judge erred in finding that there were no real prospects of rehabilitation.

The Offence

6 On the afternoon of 17 June 2006 the complainant, Anthony Browne, was at his home in Housing Commission premises in Sutherland. The complainant became involved in an argument with a neighbour and a co-offender, Scott Tennant, both of whom were standing on the neighbour’s balcony. Another male person joined the co-offender on the balcony but left a short time later and went to the applicant’s unit.

7 The applicant and the co-offenders entered a courtyard which surrounds the complainant’s unit. The complainant heard threats directed to him and called 000.

8 The applicant and two co-offenders gained entry to the complainant’s private courtyard, and then attempted to gain access to the unit through the front door. The applicant used a plastic chair to smash the glass window next to the front door. He then entered the unit through the smashed window. The co-offenders entered via the front door. The complainant was assaulted in the living room of the unit. He was punched and kicked to the head and torso area and repeatedly struck with a broom and a chair. He heard further threats from his assailants that they would kill him.

9 The sentence proceeded on the basis that there was no evidence that the applicant inflicted any of the injuries to the complainant but that he was there in the living room, encouraging and ready to assist in the assault.

10 Police and ambulance personnel attended a short time later and the complainant was taken to hospital for treatment. Police spoke with the applicant and placed him under arrest. At the time he was significantly affected by alcohol. He later denied any knowledge of the assault and claimed that he had not left his unit at all during the day. However, when the police seized the applicant's shoes and submitted them to DNA analysis, there was material on the applicant’s shoes identical to the complainant's DNA.

11 The complainant sustained extensive injuries to his mouth, teeth and neck. His upper abdomen was tender and he received a number of cuts to his scalp, neck and face. He received sutures to the right side of his face and suffered a fractured cheekbone. He remained in hospital for two days. The complainant's home required repairs to the two windows in the lounge room.

The Findings on Sentence

12 The judge found that the complainant had been severely and extensively beaten and that the assault was a "vicious, cowardly, unprovoked assault which was alcohol fuelled by a group of people who had a history of ill will towards the victim."

13 General deterrence was an important element in the sentencing exercise, particularly in circumstances where the victim was assaulted in his own home and was part of a public housing community.

14 There were several aggravating factors. The applicant was on conditional liberty at the time of the offence, being subject to a one-year section 9 bond imposed in March 2006 for an assault upon the same complainant. The applicant was also on a two year bond for a charge of assault occasioning actual bodily harm, also imposed in March 2006.

15 The judge was of the opinion that the emotional and physical harm occasioned to the complainant was more than would normally be expected from a home invasion of this nature. There was some premeditation, albeit the offence was, as the judge found, alcohol fuelled. The offences were accompanied by a level of vandalism and damage to property.

16 The judge accepted that the applicant was somewhat remorseful and that his plea of guilty had considerable utilitarian value, warranting a discount of 25% on the sentence otherwise to be imposed.

17 Ultimately, the judge assessed the offence as low to mid range and determined that a departure from the standard non parole period was warranted. The judge declined to find special circumstances on the basis that he did not think there were prospects of rehabilitation. The reasons underpinning this finding included the applicant’s poor history in relation to attempted treatment for his alcohol addiction and the extensions of leniency granted to the applicant in the past from which he had not benefited.

The Failure to Take into Account Quasi Pre Sentence Custody

18 Following the applicant's arrest on 17 June 2006, he was held in custody until 5 September 2006 when he was released to the Salvation Army Bridge program. He was initially housed at William Booth house, but then transferred the following month to a residential facility at Morissett. He reportedly made good progress until 7 March 2007 when he was discharged following a urine screen which tested positive to valium. The applicant admitted taking valium whilst on weekend leave.

19 In the course of the judge's remarks on sentence, the judge dealt with the applicant’s presentence custody and, in the same context, referred to a period of six months in the rehabilitation program. Notwithstanding the judge's reference to the program, there was no allowance made for that period of time in the structure of the sentence subsequently imposed.

20 The most recent decision of this Court on the issue of making allowance for presentence quasi-custody is Hughes v Regina [2008] NSWCCA 48, wherein Grove J. (with whom McClellan CJ at CL and Simpson J. agreed) summarised the current state of authority thus :-

It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50% of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation “custody” is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588.

21 Assuming that the judge ought to have made some allowance and that the failure to do so constitutes error, a decision by this Court to allow some benefit for time spent in a residential rehabilitation program and the extent of any allowance thereby made is subject to the constraint imposed by s 6(3) of the Criminal Appeal Act 1912 (the Act), namely that the sentence cannot be reduced to a level insufficient to reflect the objective seriousness of the offence : see R v Delaney (2003) 59 NSWLR 1 ; [2003] NSWCCA 342 per Barr J.

22 I do not understand the grant of the allowance to depend entirely on whether the residential program has been productive. The rationale for the allowance is the need to factor into the sentencing exercise the restriction on the offender’s liberty during the period of the program.

23 Having carefully considered the circumstances surrounding the offence, and in particular, the role undertaken by the applicant in gaining access to the complainant's premises whilst not participating in the assault itself, I have reached the conclusion that an allowance of three months in order to reflect the constraint upon the applicant’s liberty whilst at the Bridge program would not infringe s 6(3) of the Act.

24 I turn to the second ground of appeal.

The Failure to Find Prospects of Rehabilitation.

25 The judge's remarks canvassed the applicant's personal history. The applicant’s offending commenced after the breakup of his marriage in 1994. At that time the applicant was 35 years of age. He commenced drinking heavily and stopped work.

26 The applicant gave evidence during the sentencing proceedings to the effect that his drinking had not completely stopped since leaving the Bridge program. The applicant's evidence was that he had consumed alcohol on about 10 occasions since leaving the program, in the amount of three to five schooners of beer each time. It was in this context that the judge had difficulty accepting that there were any real prospects of rehabilitation. The judge said :-

There is nothing in his record which gives me any confidence that he will continue to deal with problems without recourse to alcohol. It does seem to me that his behaviour on this particular day was indicative of somebody clearly and badly affected by alcohol. Until he starts to realise he has got an alcohol problem and he does something seriously about it, like stopping drinking alcohol fullstop, that he is going to get nowhere and the community remains at considerable risk from this individual.

27 These comments should also be considered against the background of the applicant’s breach of two bonds, imposed three months before the commission of the instant offence. The judge also had the benefit of seeing and hearing the applicant's evidence. In those circumstances, the judge was entitled to form a view of the extent of the applicant's commitment to refrain from drinking alcohol and thereby to refrain from the commission of further offences.

28 I accept that the evidence given by the applicant and called on his behalf was capable of establishing a change in his attitude towards the consumption of alcohol, but there was a live issue as to the applicant's insight into his behaviour. The applicant entered the Bridge program as part of his bail conditions and failed to observe the program’s prohibition on the consumption of any alcohol or drugs. He had resumed drinking alcohol in the belief that he could limit his consumption to relatively safe levels.

29 Accepting for present purposes that it may have been unduly harsh to determine that there were no prospects of rehabilitation, it could not be said that the applicant's prospects of rehabilitation were promising. At the end of the day, the applicant challenges the judge's finding in order to persuade this Court to make a finding of special circumstances where none was made below. Notwithstanding the minimal steps taken by the applicant towards his rehabilitation and the fact that this was his first time in full-time custody, I would not further reduce the non-parole period by way of a finding of special circumstances. Such a course would, in my view, result in a non-parole period that fails to reflect the objective gravity of the offence.

30 I would not uphold this ground of the application for leave to appeal.

31 I propose the following orders :-

1. Grant leave to appeal and allow the appeal.
2.The sentence imposed on 24 August 2007 is quashed.

3. In lieu, the applicant is sentenced to a non parole period of three years and four months, to date from 29 February 2007, expiring 28 June 2010, with a balance of term of one year and two months, to date from 29 June 2010, expiring 28 August 2011.

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