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Court of Criminal Appeal 6 February 2006

Bushara v Regina

[2006] NSWCCA 8

DrugsTheft & property
CRIMINAL LAW WHETHER NON APPEAL WHETHER IT HAS ANY RELEVANCE OR WEIGHT.

Citation: Bushara v Regina [2006] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 6 February 2006
Judges: Basten JA, Howie J, Hall J

Background

The applicant entered the Drug Court programme in March 2003 while subject to several suspended sentences for break-and-enter offences. In March 2004, while still participating in the programme, he committed a further offence of aggravated break, enter and steal at a residential property in Stanhope Gardens, entering the garage in the early morning hours and attempting to steal a vehicle and personal property.

The commission of that offence led to termination of the Drug Court programme in April 2004. The Drug Court was then required to re-sentence the applicant on the original suspended sentences as well as impose a fresh sentence for the March 2004 offence. The re-sentencing judge (Dive SJ) imposed a non-parole period of two years and six months for the March 2004 offence, to be served cumulatively on the redetermined sentences. The applicant sought leave to appeal, contending that the sentence was manifestly excessive.

  • Whether the sentence imposed for the March 2004 offence was manifestly excessive, having regard to the period of pre-sentence custody served, time spent in the Drug Court programme, sanctions imposed during the programme, and time in a rehabilitation centre.
  • Whether the non-parole period was excessive in light of the same factors.
  • Whether fresh material tendered before the Court of Criminal Appeal for the purposes of resentencing had any relevance or weight in the appeal.

Decision

Howie J (with whom Basten JA and Hall J agreed) found that the sentencing judge had adequately addressed the principal mitigating factors, including the applicant's participation in the Drug Court programme and his good prospects of rehabilitation. The judge had correctly identified that the applicant was making genuine efforts to address his drug dependency and had performed relatively well in the programme before reoffending. These findings were not challenged.

However, Howie J identified one specific error: the sentencing judge failed to reflect in the non-parole period a period of approximately three months that the applicant had spent in pre-sentence custody. While the judge had acknowledged that custody in the reasons for judgment, it was not factored into the non-parole period as required. That omission, rather than any broader error in the assessment of the sentence, justified appellate intervention.

On the broader question of sentence length, the Court found the overall head sentence was within an appropriate range given the gravity of the offence, the applicant's criminal history, and the standard non-parole period of five years applicable to the offence. The reduction from that standard was justified by the applicant's Drug Court participation, rehabilitation prospects, and time already in custody.

Regarding the volume of material filed for the resentencing, Howie J used the occasion to comment critically on a developing practice of tendering large amounts of material before the Court of Criminal Appeal that had no real bearing on the appeal. While some of the affidavit material was relevant in confirming the applicant's continued rehabilitation in custody, much of it served no purpose and imposed an unnecessary burden on the Court.

Orders Made

  • Leave to appeal granted; the sentence imposed by Dive SJ for the offence of 15 March 2004 was quashed.
  • In lieu, the applicant was sentenced to a non-parole period of 2 years, commencing 15 June 2005 and expiring 14 June 2007.
  • A balance of term of 18 months was ordered to commence 15 June 2007.

Key Takeaways

  • A sentencing court's failure to reflect acknowledged pre-sentence custody in the non-parole period constitutes an error that may warrant appellate intervention, even where the overall head sentence is otherwise appropriate.
  • Under the Drug Court Act 1998, when a programme is terminated and initial sentences are redetermined, the redetermining judge must account for the nature of the offender's participation in the programme, any sanctions imposed during it, and all relevant periods of custody.
  • The standard non-parole period for aggravated break, enter and steal under s 112(2) of the Crimes Act 1900 is five years; a departure below that standard requires sound justification through mitigating factors, including Drug Court participation and rehabilitation prospects.
  • In dismissing most grounds of appeal, the Court of Criminal Appeal confirmed that evidence of post-offence rehabilitation and programme participation, while capable of supporting an existing finding of good prospects, does not automatically warrant a lesser sentence on appeal.
  • The Court of Criminal Appeal identified and criticised the growing practice of tendering large volumes of material for resentencing purposes that have no real bearing on the appeal, describing it as an unnecessary burden on the Court that legal practitioners should address.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Drug Court Act 1998 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24(a), 44
- Freedom of Information Act 1989 (NSW)

Cases:
- R v Tadrosse [2005] NSWCCA 145
- R v Johnson [2004] NSWCCA 76
- R v Hathaway [2005] NSWCCA 368
- R v Ponfield (1999) 48 NSWLR 327
- R v Henry (1999) 46 NSWLR 346
- R v Newman and Simpson (2004) 145 A Crim R 361
- R v Fowler (2003) 151 A Crim R 166
- R v Youkhana [2005] NSWCCA 231
- Gonzalez v R [2006] NSWCCA 4