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Court of Criminal Appeal 10 December 2001

Regina v Vitsos

[2001] NSWCCA 528

Theft & property

Citation: Regina v Vitsos [2001] NSWCCA 528
Court: NSW Court of Criminal Appeal
Date: 10 December 2001
Judge(s): Whealy J; Greg James J

Background

The applicant pleaded guilty in the District Court to five counts of break, enter and steal committed between February 1997 and July 1999. The offences involved breaking into residential premises at Willoughby, Rockdale and Brighton-le-Sands, with total stolen property valued at approximately $28,370. The applicant was identified through fingerprint matching.

Armitage DCJ sentenced the applicant in June 2001. For the two more recent offences, concurrent sentences of four years' imprisonment were imposed with a three-year non-parole period. For the three earlier offences, concurrent terms of three and a half years were imposed with a non-parole period of two years and eight months. All sentences commenced on 1 June 2001, giving an earliest release date of 31 May 2004.

The sentencing judge acknowledged the applicant's long-standing heroin addiction, difficult personal history, guilty pleas entered at the earliest opportunity, and expressed contrition. However, the judge concluded there was "no reason for any great degree of optimism" regarding rehabilitation and found no special circumstances existed.

  • Whether the sentencing judge erred in failing to find "special circumstances" that would justify departing from the statutory non-parole period formula by reducing the non-parole period and extending the parole period.
  • Whether the sentencing judge gave adequate reasons for the finding that no special circumstances existed, given the brevity of the statement on that point.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Whealy J, with whom Greg James J agreed, found no error in the sentencing judge's approach.

On the special circumstances question, the Court held that the sentencing judge's brief statement that "there are no special circumstances" was adequately supported by the substance of his Honour's broader sentencing remarks. Those remarks demonstrated that the judge had considered each of the factors capable of constituting special circumstances, including the applicant's subjective background, psychological report, rehabilitation prospects, and substance abuse history. The brevity of the concluding statement did not, in isolation, constitute error.

The Court noted that whether special circumstances exist is a question of fact. It was open to the sentencing judge to take a pessimistic view of the applicant's rehabilitation prospects, particularly given the long history of heroin use and prior offending. The Court also endorsed the proposition that, in some cases, keeping an offender in custody and drug-free may be as rehabilitative as early release into an environment where drug access remains a risk.

Fresh evidence of the applicant's post-sentence progress in literacy and drug rehabilitation was placed before the Court of Criminal Appeal. The Court acknowledged that evidence for the limited purpose of considering re-sentencing, had error been established. Because no error was found, the fresh evidence did not assist the appeal, though the Court observed it would likely be of considerable value before the Parole Board.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Whether special circumstances exist to justify a departure from the statutory non-parole period formula is a question of fact, and a sentencing judge's finding on that question will not be disturbed on appeal merely because it is briefly stated, provided the broader sentencing remarks demonstrate adequate consideration of the relevant matters.
  • A pessimistic view of rehabilitation prospects can properly inform a finding that no special circumstances exist, particularly where a long history of drug dependency is involved.
  • In dismissing the appeal, the Court confirmed that keeping an offender in custody and drug-free may, in some circumstances, be viewed as equally conducive to rehabilitation as early release into a community environment where drug access remains likely.
  • Fresh evidence of rehabilitation produced for the first time on appeal is admissible only for the purpose of assessing re-sentencing, and only if error by the sentencing judge is first established. Where no error is found, such evidence cannot ground the appeal itself.
  • No error arises from brief reasons on the special circumstances question where those reasons are read in the context of comprehensive sentencing remarks addressing all relevant subjective factors.

Legislation and Cases Referenced

Legislation:
- No specific legislation cited in the judgment text (the maximum penalty of 14 years for break, enter and steal under the relevant NSW Crimes Act provision is referenced implicitly).

Cases Cited:
- Keong (2001) NSWCCA 416
- Andrews (2001) NSWCCA 428
- Haines (2001) NSWCCA 256
- Hamilton Hughes (2001) NSWCCA 264
- Lay (2000) NSWCCA 30
- Vireak Long (2001) NSWCCA 159