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Court of Criminal Appeal 25 March 2003

R v. White

[2003] NSWCCA 88

Theft & property
BREAK, ENTER AND STEAL OFFENCES SENTENCE NOT EXCESSIVE NO QUESTION OF PRINCIPLE

Citation: R v White [2003] NSWCCA 88
Court: NSW Court of Criminal Appeal
Date: 25 March 2003
Judge(s): Studdert J; Smart AJ

Background

The appellant was convicted in the District Court on pleas of guilty to two counts of break, enter and steal and one count of taking a conveyance without the owner's consent, with three further offences taken into account. All offences occurred on the same day in May 2001. The appellant, who appeared in person, broke into two residential units in the Lidcombe and Auburn areas while using a stolen car, making off with property from each premises before being arrested after a foot chase.

The sentencing judge imposed concurrent sentences of five years and three months, with a non-parole period of three years and three months, for each of the two principal break-and-enter offences, together with a fixed term of twelve months for the vehicle offence. The appellant sought leave to appeal on the ground that the sentences were excessive.

  • Whether the sentencing judge failed to adequately account for the appellant's mental health circumstances, specifically the failure of correctional authorities to provide him with prescribed Dexamphetamine upon his release on parole approximately eight months before the offences.
  • Whether the judge properly credited the time the appellant spent on remand before sentencing.
  • Whether the judge erred in declining to order that part of the sentence be served at a rehabilitation centre.
  • Whether errors in the pre-sentence report materially affected the sentence imposed.

Decision

The Court of Criminal Appeal accepted that the circumstances of the appellant's release from prison, particularly the failure to provide him with his prescribed ADHD medication or refer him promptly to a treating doctor, warranted a grant of leave to appeal. However, the Court did not find that those circumstances justified reducing the sentence imposed.

Smart AJ found it was a "very long bow" to draw a causal connection between the failure to supply Dexamphetamine upon release in September 2000 and the commission of offences in May 2001. The appellant had commenced seeing Dr Cook well before the offences, yet had continued using amphetamines and reoffending throughout that period. The mental health issues, while noted, were not found to bear meaningfully on the commission of the May 2001 offences.

On the question of remand time, the appellant's parole had been revoked following the offences, and he was serving the balance of an earlier sentence. The sentencing judge backdated the new sentence to February 2002, producing an overlap of more than twenty months with the earlier sentence. The Court found this was a legitimate exercise of judicial discretion that effectively reduced the overall custodial period.

The Court similarly upheld the judge's refusal to direct that part of the sentence be served at a rehabilitation facility, finding that decision was within the judge's discretion and was not unreasonable given the appellant's extensive criminal history and his early return to drug use after his prior release. The Court found no errors in the handling of the pre-sentence report that would have affected the outcome.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that leave to appeal may be granted even where the substantive appeal ultimately fails, where the circumstances of the application warrant consideration.
  • A significant gap in time between alleged systemic failures (here, failure to provide prescribed medication on release from prison) and the commission of offences will undermine any causal argument that those failures contributed to the offending.
  • Where a parolee's parole is revoked and a new sentence is later imposed, backdating the new sentence to create an overlap with the balance of the prior sentence is a legitimate sentencing mechanism, not an error.
  • No error was established in the sentencing judge's refusal to direct partial service of a sentence at a rehabilitation facility; that decision remains within the court's discretion, particularly where the offender's history gives limited grounds for optimism about rehabilitation.
  • Concurrent sentences for multiple break-and-enter offences committed on the same occasion will not be found excessive merely because the offender had personal hardship, where that offender had an extensive prior record of similar dishonesty offences and was on parole at the time.

Legislation and Cases Referenced

No specific legislation or cases were cited in the metadata or judgment text provided.