Citation: R v Wayne Lee Garland [1999] NSWCCA 410
Court: NSW Court of Criminal Appeal
Date: 10 December 1999
Judge(s): Simpson J; Smart AJ
Background
The appellant was convicted after trial of breaking, entering and stealing and breaking and entering with intent. The offences occurred over a single night in September 1996 and involved two separate premises. The first offence was a planned operation involving cutting alarm wires, cutting through a roof, and using oxyacetylene equipment in an attempt to open a safe. The second involved forcing entry with a crowbar to premises that ultimately yielded nothing of value, followed by a police chase in a stolen vehicle.
The appellant, who was 22 years old at the time of the offences, had an extensive criminal history dating from 1990. He had a significant drug problem that underpinned much of his offending and had previously served a gaol sentence for separate break, enter and steal offences imposed in March 1998. The District Court sentenced him to concurrent minimum terms of 2 years with an additional term of 18 months, with sentences commencing in July 1998.
The appellant sought leave to appeal against the severity of his sentences, appearing in person. He relied on the length of time already served, his efforts at rehabilitation, his drug-free status, changed outlook, and his contention that he had contracted Hepatitis C while in custody.
Legal Issues
- Whether the aggregate effect of the concurrent sentences was excessive, having insufficient regard to the appellant's rehabilitation prospects and the totality principle
- Whether the additional term of 18 months was adequate to allow for the support and supervision the appellant would require on release
- Whether events occurring after the original sentencing, specifically the contraction of Hepatitis C in custody, could be taken into account to vary the sentences further
Decision
The Court accepted that the sentences, viewed in aggregate, were excessive. While acknowledging the gravity of the offences and the importance of general and personal deterrence, the Court found that a total minimum term of three years one month with only an 18-month additional term did not sufficiently recognise that the appellant was a young man at a genuine crossroads in his life, with real prospects of rehabilitation. The Court determined that a shorter minimum term and a longer additional term of two years was warranted to allow for adequate supervision and support upon release.
On the Hepatitis C issue, the Court found that while the evidence pointed to the appellant probably having contracted the infection during his imprisonment, this was not conclusive. Importantly, the Court noted there was no evidence as to prognosis or long-term effects. The Court held that, generally speaking, where prisoners suffer illness or injury in gaol, any concession on that account is a matter for the Executive rather than the courts.
The Court applied the principle, drawn from the cited authorities, that events occurring after sentencing can only be taken into account in exceptional circumstances, and then usually where there has been a miscarriage of justice. The Court declined to elaborate further on those principles given the appellant appeared in person and full argument had not been presented on the point. It concluded that the sentences could not be varied any further than the adjustment already proposed on totality grounds.
Orders Made
- Leave to appeal granted
- Appeal allowed; original sentences quashed
- On each of counts 1 and 2, concurrent minimum term of 18 months commencing 25 July 1998 and ending 24 January 2000, with an additional term of 2 years commencing 25 January 2000
Key Takeaways
- Where aggregated concurrent sentences do not sufficiently reflect a young offender's rehabilitation prospects and the totality principle, the Court of Criminal Appeal may intervene to restructure the minimum and additional terms accordingly.
- A longer additional term is appropriate where the sentencing court identifies special circumstances, particularly an offender's need for extended supervision, counselling, and support upon release.
- Events occurring after the original sentencing can only be taken into account on appeal in exceptional circumstances, generally where there has been a miscarriage of justice, as confirmed by reference to R v Sommerville (1995) 36 NSWLR 184.
- Where a prisoner contracts illness or suffers injury in custody, any resulting concession is ordinarily a matter for the Executive rather than the courts, absent exceptional circumstances meeting the threshold for considering post-sentence events.
- Gravity of the offence and general and personal deterrence remain cardinal sentencing considerations, even where an offender demonstrates genuine rehabilitative progress.
Legislation and Cases Referenced
Cases:
- R v Sommerville (1995) 36 NSWLR 184
- Wilson v Department of Corrective Services (1997) 93 A Crim R 301
- R v Webster (1998) 43 NSWLR 258
Legislation: No legislation was cited in the judgment.