Citation: Regina v Deverell [1999] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 8 March 1999
Judge(s): Simpson J; Smart AJ
Background
The applicant, a young man aged 18 at the time of his original offence, pleaded guilty in the District Court to break, enter and steal. The stolen goods were valued at approximately $51,000, of which around $17,000 was never recovered. Judge Gibson deferred sentencing and instead imposed a recognisance requiring the applicant to reside at a rehabilitation facility, remain under Probation Service supervision, and be of good behaviour for three years. Ten additional matters were taken into account under the recognisance.
The applicant failed to comply with the conditions. He was asked to leave two rehabilitation facilities after using cannabis, was removed from a third for bringing in tobacco, and repeatedly failed to follow Probation Service directions. He did not stay at any facility for longer than a few months.
When called up for sentence by Judge Howie on 10 July 1998 following these breaches, the applicant was sentenced to two years imprisonment, divided into a minimum term of nine months and an additional term of 15 months, with special circumstances found. The applicant, representing himself, sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether Judge Howie erred in the sentencing process after the applicant was called up for breach of his recognisance
- Whether the sentence of two years imprisonment, with a nine-month minimum term, was within the proper range given the applicant's youth, lack of prior custodial history, and other subjective circumstances
- Whether fresh material raised by the unrepresented applicant on appeal (including the birth of his child and claimed rehabilitation in custody) could be taken into account
Decision
Simpson J held that there was no error in Judge Howie's sentencing process. The sentencing judge had properly reassessed the weight to be given to rehabilitation, concluding that the passage of time and the applicant's repeated failures had made rehabilitation a less compelling consideration than it was when Judge Gibson first deferred sentence. The Probation Service itself had concluded that no viable alternative to custody remained.
The Court noted that Judge Gibson had warned the applicant in explicit terms at the time of the original recognisance that breach would result in a minimum term of 18 months. Judge Howie ultimately imposed a shorter minimum term of nine months, which Simpson J considered well within the available range when weighed against the seriousness of the offence, the Form 1 matters, and the applicant's repeated failure to take the opportunity extended to him.
On the fresh material raised by the unrepresented applicant, including his girlfriend's pregnancy and the child's subsequent birth, the Court acknowledged the personal circumstances with sympathy but declined to take them into account. The Court of Criminal Appeal sits only to correct error in the sentencing below, not to substitute its own view based on developments that occurred after the original sentence was imposed.
Smart AJ agreed with Simpson J without adding separate reasons.
Orders Made
- Leave to appeal granted
- Appeal dismissed
- Direction that the applicant be released at the expiration of the minimum term
Key Takeaways
- Where a sentencing court has given an offender a rehabilitation-focused disposition and that offender repeatedly fails to comply, the court at resentencing may properly treat rehabilitation as a reduced consideration compared to the original sentencing occasion.
- A prior judicial warning to an offender about the consequences of breach, even one given by a different judge, forms part of the relevant sentencing context on resentencing.
- The Court of Criminal Appeal confirmed its function is limited to correcting error in the original sentencing; post-sentence developments raised for the first time on appeal do not ordinarily form a basis for intervention.
- No error was established merely because a sentencing judge imposed a custodial sentence on a young, first-time prisoner, where the objective seriousness of the offence and the failure of a non-custodial disposition both warranted that outcome.
- In dismissing the appeal, the Court directed that the applicant be released at the expiration of his minimum term, addressing a procedural gap in the original orders.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act (NSW), s 21 (taking into account additional offences)
Cases cited: No specific cases were cited in the judgment.