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Court of Criminal Appeal 30 November 2000

R v Heath

[2000] NSWCCA 509

DrugsTraffic & driving

Citation: R v Heath [2000] NSWCCA 509
Court: NSW Court of Criminal Appeal
Date: 30 November 2000
Judge(s): Wood CJ at CL

Background

The applicant was a 33-year-old man with a significant history of drug abuse, including serious amphetamine addiction, who had been referred to the Drug Court in June 1999. He faced a large number of offences committed between January 1998 and May 1999, covering vehicle theft, driving while disqualified, possession of prohibited drugs, and related matters. All initial sentences were suspended to allow him to participate in the Drug Court rehabilitation programme.

The applicant's performance on the programme was mixed. It began poorly but improved as he received assistance for impulse control and aggression. Despite this improvement, he committed further driving offences while on the programme in July 1999 and August 1999, and again in December 1999 while awaiting final sentence. The programme was ultimately terminated under the Drug Court Act 1998.

At final sentence in May 2000, Judge Murrell SC imposed a custodial sentence of approximately 17 months with a non-parole period expiring in April 2001, along with other confirmed initial sentences. The applicant, appearing in person, sought leave to appeal on the ground that the final sentence was manifestly excessive.

  • Whether the final sentence was manifestly excessive, particularly when compared with sentences imposed on other Drug Court offenders
  • Whether the sentencing judge erred by failing to backdate the sentences to account for time already served in custody
  • Whether the sentencing judge erred in characterising the further driving offences committed during the programme as serious
  • Whether the sentencing judge gave adequate weight to the applicant's progress and improvement during the programme

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Wood CJ at CL found no merit in any of the applicant's submissions. The sentencing judge, having observed the applicant throughout the entire programme, was in a significantly better position than the appellate court to assess his performance and progress. No error in that assessment was demonstrated.

On the question of backdating for prior custody, the Court noted that backdating is not a mandatory requirement (citing R v English). In the circumstances here, including broken periods of custody and the number of offences, it would have been artificial to backdate. The Court found that the sentencing judge had plainly accounted for earlier periods of custody, including time served as sanctions for misconduct during the programme, by shortening the further period of imprisonment.

The Court rejected the applicant's characterisation of the in-programme driving offences as relatively insignificant. Wood CJ at CL observed that the applicant's continued minimisation of those offences suggested a persisting inability to recognise the seriousness of his conduct. The Court confirmed that such offences, particularly against a background of lengthy similar criminality, warranted serious treatment.

The Court also confirmed there was no breach of section 12(4) of the Drug Court Act 1998, as the final sentence did not exceed the initial sentence even when earlier custody periods were taken into account.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Backdating a sentence to account for prior custody is not a mandatory requirement; a sentencing court may instead account for earlier custody by shortening the further period of custody fixed in the sentencing order.
  • Under the Drug Court Act 1998, a final sentence imposed following programme termination must not exceed the initial sentence, including when earlier periods of custody are factored in.
  • The Court of Criminal Appeal confirmed that a Drug Court judge, having observed an offender throughout the entire programme, is significantly better placed than an appellate court to assess that offender's performance and progress.
  • Further offences committed while a participant is on a Drug Court programme are regarded as serious matters, particularly where they repeat a lengthy pattern of similar criminal conduct.
  • In dismissing the appeal, the Court applied the principle that appellate intervention on severity grounds requires the sentence to fall outside a legitimate exercise of sentencing discretion, a threshold the applicant could not meet on the facts.

Legislation and Cases Referenced

Legislation:
- Drug Court Act 1998 (NSW), ss 10(1)(b), 11(1)(c), 12, 12(4)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Crime (Sentencing Procedure) Act 1999 (NSW), s 58

Cases:
- R v McCrea [2000] NSWCCA 300
- R v English [2000] NSWCA 245