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Court of Criminal Appeal 2 July 2004

R v OHAR

[2004] NSWCCA 252

DrugsTheft & property

Citation: R v Ohar [2004] NSWCCA 252
Court: NSW Court of Criminal Appeal
Date: 2 July 2004
Judge(s): Hulme J (sitting as single judge pursuant to s 5AF of the Criminal Appeal Act 1912)

Background

The applicant had pleaded guilty to a series of offences, including breaking, entering and stealing, possession of housebreaking implements, and being carried in a stolen motor vehicle. He was originally sentenced in the Drug Court in January 2001, with concurrent terms of imprisonment suspended on his acceptance into a drug program.

The applicant participated in the program for a period before leaving. His involvement was terminated by the Drug Court in September 2001. During the program he spent 37 days in custody (four of which related to sanctions), approximately one month in full-time residential rehabilitation, and additional time participating in the program.

In April 2003, Judge Milson of the Drug Court resentenced the applicant in respect of the first group of offences, imposing concurrent fixed terms of nine months imprisonment dating from the date of his arrest in October 2002. The applicant sought leave to appeal that resentencing, arguing the nine-month term was manifestly excessive.

  • Whether the nine-month fixed term imposed by Judge Milson adequately accounted for the applicant's pre-sentence custody, the notional non-parole period implied by the original sentence, and the time spent in custody or quasi-custody during the drug program.
  • Whether Judge Milson's failure to provide adequate reasons for declining to set a non-parole period, and for selecting the nine-month term, enlivened the Court of Criminal Appeal's jurisdiction to intervene.
  • Whether, even if errors in the sentencing process were established, the Court should exercise its discretion to resentence given the applicant's extensive criminal history and the objective seriousness of the offences.

Decision

Hulme J acknowledged that the applicant had a legitimate argument that insufficient credit had been given for time spent in custody and quasi-custody during the drug program, and that Judge Milson had not adequately explained why the nine-month term was selected relative to the original sentence imposed by Judge Barnett. His Honour also noted that Judge Milson had failed, as required by s 45(2) of the Crimes (Sentencing Procedure) Act 1999, to state reasons for imposing a fixed term rather than setting a non-parole period.

However, Hulme J found that these procedural failures, while sufficient to enliven appellate jurisdiction, did not warrant interference with the sentence itself. The critical consideration was the applicant's serious criminal record: he was a recidivist with numerous prior convictions for dishonesty in both New South Wales and Victoria, including previous terms of imprisonment for breaking and entering. A nine-month term of actual custody for those offences, standing alone, would in fact have been manifestly inadequate given that background.

Taking into account the totality of relevant factors, including the objective gravity of the offences (breaking and entering carrying a maximum of 14 years), the applicant's record, and the time already served, Hulme J concluded that nine months was no higher than the Court itself would have imposed. On that basis, there was no occasion to interfere.

Hulme J also noted, for completeness, that the third group of sentences (imposed concurrently) were beyond the Court's reach, and that any manipulation of the second group's commencement date to bring forward the end of the overall sentence would not have been an appropriate exercise of the Court's power.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • Under s 12 of the Drug Court Act 1998, when a drug offender's program is terminated, the Drug Court must reconsider the initial sentence and take into account the nature of the offender's participation, any sanctions imposed, and all time spent in custody in connection with the relevant offences.
  • A sentencing court's failure to provide reasons for declining to set a non-parole period (as required by s 45(2) of the Crimes (Sentencing Procedure) Act 1999), and failure to explain the basis for the penalty selected, can be sufficient to enliven appellate jurisdiction.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that jurisdiction to interfere does not automatically translate into an obligation to resentence: where the sentence imposed is no higher than the appellate court would itself impose, interference is not warranted.
  • Where an offender has a substantial record of relevant prior convictions and prior custodial sentences have not operated as a deterrent, those factors weigh heavily against a finding of manifest excess.
  • No error was established that could produce a practical benefit for the applicant, particularly given that concurrent sentences in a separate group of offences lay outside the Court's power to revisit.

Legislation and Cases Referenced

Legislation:
- Drug Court Act 1998 (NSW), s 8A, s 12
- Criminal Appeal Act 1912 (NSW), s 5AA(4), s 5AF, s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 2, s 45(2)
- Crimes Act 1900 (NSW), ss 112, 114, 117, 154A

Cases:
- R v Ohar [2004] NSWCCA 83