Citation: Regina v DEMIROZ [2004] NSWCCA 334
Court: NSW Court of Criminal Appeal
Date: 27 September 2004
Judge(s): Wood CJ at CL, Barr J, Hoeben J
Background
The applicant pleaded guilty in the District Court on 22 September 2003 to two counts of breaking, entering and stealing, and one count of driving a motor vehicle taken without the owner's consent. The offences occurred in May 2001 at Lidcombe, where the applicant stole a vehicle, used it to facilitate two residential break-ins, and was apprehended by neighbours at the scene. He was addicted to illegal drugs and committed the offences to fund that addiction.
The applicant had a lengthy criminal record dating to the 1970s, including numerous drug and property offences and many periods of full-time imprisonment. He had previously participated in the Drug Court merit program but lost his place after missing doses, attending appointments late, and continuing to use illegal drugs.
These proceedings were originally a retrial, as the applicant had successfully appealed earlier convictions on more serious, aggravated charges arising from the same incidents. The District Court sentenced him to concurrent five-year terms on the breaking and entering counts, with a non-parole period of three years and nine months, and a fixed two-year term on the driving count.
Legal Issues
- Whether the sentencing judge made erroneous findings of fact when assessing the applicant's prospects of rehabilitation
- Whether the sentencing judge erred in declining to find "special circumstances" that would have justified extending the parole period beyond one quarter of the effective sentence
- Whether the sentencing judge gave insufficient weight to the applicant's subjective case, resulting in a manifestly excessive sentence
Decision
On the first two grounds, the Court considered whether the sentencing judge had wrongly confined his special circumstances analysis to the question of rehabilitation alone, rather than considering all relevant circumstances. The applicant argued that accumulation of the new sentences upon an existing sentence produced a non-parole period representing approximately 79 per cent of the total effective sentence, which should have been treated as a special circumstance.
Barr J, with whom Wood CJ at CL and Hoeben J agreed, was not satisfied that the sentencing judge had overlooked the accumulation issue. His Honour had expressly acknowledged it, and his conclusion that rehabilitation prospects were poor was a legitimate and central consideration. The effective non-parole period of four years and seven months across all sentences was held to be well within the range of sentencing discretion for a repeat offender with such a serious record.
On the third ground, the applicant pointed to a psychologist's report indicating he had a genuine desire to cease drug use and some capacity to engage with rehabilitation. The Court found this subjective case was not strong. The applicant had not given evidence himself, and the sentencing judge had reasonably treated the psychologist's second-hand accounts with some caution. The applicant's long history of offending and his failure to sustain participation in the Drug Court program significantly undermined the weight of the subjective material.
The Court granted leave to appeal but dismissed all three grounds, concluding that the sentences were well within the sentencing discretion available to the District Court judge.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge's special circumstances analysis must consider all relevant circumstances, not rehabilitation prospects alone; however, where accumulation was expressly acknowledged and rehabilitation prospects were genuinely poor, no error was established simply because the focus fell heavily on rehabilitation.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a non-parole period falling within the recognised discretionary range will not be disturbed on appeal, even where some accumulation on an existing sentence is involved.
- Poor prospects of rehabilitation, established through a long and repetitive criminal history and failure to sustain Drug Court participation, can substantially reduce the weight of otherwise favourable subjective material at sentencing.
- Where an applicant does not give evidence at sentencing, a sentencing court is entitled to approach second-hand psychological evidence cautiously and to decline to accept it at face value.
- Sufficient subjective material to raise an arguable case for leniency does not automatically produce a finding of manifest excess; the court weighs that material against the objective seriousness of the offending and the full criminal history.
Legislation and Cases Referenced
Cases:
- R v Simpson [2001] NSWCCA 534 (cited on the proper approach to special circumstances and the extension of parole periods)
No legislation was identified in the text of the judgment.