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Court of Criminal Appeal 21 May 2002

R v Bell

[2002] NSWCCA 195

DrugsTheft & propertyTraffic & drivingFirearms & weapons
SENTENCING SENTENCES NOT EXCESSIVE

Citation: Bell v R [2002] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 21 May 2002
Judge(s): Smart AJ

Background

The appellant had been enrolled in the Drug Court Programme in January 2000 following convictions for multiple offences including break, enter and steal, dangerous driving, possession of housebreaking implements, and possession of a prohibited weapon. At the time of sentencing into the programme, execution of his sentences was suspended for the programme's duration under the Drug Court Act 1998.

The appellant made some early progress on the programme but struggled throughout, never sustainably advancing beyond stage one. His difficulties were compounded by ongoing drug use, association with a poor peer group, and prolonged grief following the loss of a child in 1999. He also committed further offences while on the programme, including receiving stolen goods and driving whilst disqualified.

After the appellant failed to appear at the Drug Court in June 2001, a warrant issued and he was arrested in September 2001. The Drug Court terminated the programme on the basis that it served no useful purpose, and final sentences were imposed in October 2001. The appellant challenged those sentences as excessive before the Court of Criminal Appeal.

  • Whether the final sentences imposed after programme termination were excessive in the circumstances
  • Whether sufficient credit had been given for the appellant's progress and participation in the Drug Court Programme
  • Whether the stringent conditions of the programme (including regular drug testing and court attendance) should have produced a greater reduction in the final sentences
  • Whether the sentencing judge had correctly applied the parole provisions under the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal found the sentences were not excessive. The sentencing judge had already extended considerable leniency: the Court noted that, absent the Drug Court Programme, the sentences would likely have been longer. The appellant's criminal record, including prior sentences of up to two years imprisonment for similar offences, did not entitle him to further leniency.

The Court rejected the submission that the conditions of the programme should have driven a greater reduction in the final sentences. Although the programme involved frequent drug testing and regular contact with counsellors and the court, the appellant was not confined to a residential facility and retained considerable freedom of movement. The programme was designed for his benefit, and had he completed it successfully, he would likely have received a lesser sentence or a bond.

The Court also noted that the appellant had committed further offences during the programme, which was an aggravating factor. The sentencing judge's decision to set a short non-parole period was the mechanism by which she recognised such progress as the appellant had made, consistent with her own earlier observation that the final sentence could best address that progress.

One technical error was identified: the sentencing judge had described the earliest release date as a possibility rather than making a mandatory supervised parole order. Under section 50 of the Crimes (Sentencing Procedure) Act 1999, where sentences are for less than three years, the court is required to order release on parole. The appeal was allowed to that limited extent to add the mandatory direction.

Orders Made

  • The appeal was allowed to the extent of adding a direction that the appellant be released on supervised parole on 30 September 2002.
  • Otherwise, the appeal was dismissed.

Key Takeaways

  • A Drug Court participant's incomplete or unsuccessful participation in a programme does not automatically entitle that person to a substantial reduction in final sentences, particularly where further offences were committed during the programme.
  • Progress made during a Drug Court Programme can be recognised through the fixing of a short non-parole period rather than a reduction in the head sentence.
  • The Court of Criminal Appeal confirmed that the conditions of a Drug Court Programme, while restrictive, do not carry the same weight in mitigation as a custodial or residential regime when the participant retained significant freedom of movement.
  • Under section 50 of the Crimes (Sentencing Procedure) Act 1999, where total sentences are less than three years, a court must make a supervised parole order rather than leaving release on parole as a discretionary outcome.
  • Offending committed while on a Drug Court Programme is an aggravating factor at final sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Drug Court Act 1998 (NSW), ss 7(2), 7(3), 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases:
- No cases were cited in the judgment.