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Court of Criminal Appeal 15 December 2008

TRUSS v REGINA

[2008] NSWCCA 325

Assault & violenceTheft & property
SENTENCE APPEAL BREAK ENTER AND COMMIT AFFRAY NO QUESTION OF PRINCIPLE

Citation: TRUSS v REGINA [2008] NSWCCA 325
Court: NSW Court of Criminal Appeal
Date: 15 December 2008
Judge(s): McClellan CJ at CL, Simpson J, Latham J

Background

The appellant pleaded guilty in the District Court to Aggravated Break, Enter and Commit Affray under s 112(2) of the Crimes Act 1900, an offence carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of five years. The offence involved entering a neighbour's unit in a Housing Commission complex with two co-offenders and being present during a severe, alcohol-fuelled assault on the complainant in his own home. The appellant broke a glass window to gain entry, though the sentencing court found no evidence that he personally inflicted the injuries.

The District Court sentenced the appellant to a non-parole period of three years and four months with a balance of term of one year and two months, allowing a 25% discount for the guilty plea. The judge declined to find special circumstances to vary the statutory ratio between non-parole period and balance of term, concluding the appellant had no real prospects of rehabilitation given his poor treatment history and prior breaches of good behaviour bonds.

After arrest in June 2006, the appellant had been released to the Salvation Army Bridge residential rehabilitation program. He made reasonable progress until being discharged in March 2007 following a positive drug screen after he consumed valium during weekend leave. He then remained in pre-sentence custody until sentencing in August 2007.

  • Whether the sentencing judge erred by failing to make any allowance for the time the appellant spent in a residential rehabilitation program prior to sentence (quasi pre-sentence custody).
  • Whether the sentencing judge erred in finding that the appellant had no real prospects of rehabilitation.

Decision

Failure to credit rehabilitation program time

The Court of Criminal Appeal accepted that the sentencing judge had referred to the rehabilitation program in his remarks but had not factored that period into the structure of the sentence. Drawing on Hughes v Regina [2008] NSWCCA 48, the Court confirmed the existing approach: offenders should receive recognition for productive time spent in pre-sentence rehabilitation, at approximately 50% of the credit that would apply to ordinary pre-sentence custody, preferably implemented by backdating the commencement date of the sentence.

The Court found this omission constituted an error justifying appellate intervention. However, any reduction was subject to the constraint in s 6(3) of the Criminal Appeal Act 1912: the sentence could not be reduced below a level that adequately reflected the objective seriousness of the offence. The Court backdated the commencement of the sentence to account for the rehabilitation period, adjusting the start date from 29 May 2007 to 28 February 2007, while leaving the non-parole period and balance of term unchanged.

Prospects of rehabilitation

The Court accepted that the judge's finding of no prospects of rehabilitation may have been unduly harsh. The appellant had engaged with the Bridge program and gave evidence suggesting a changed attitude toward alcohol. However, the Court noted that the appellant had breached two good behaviour bonds imposed only months before the offence, had entered the rehabilitation program as a bail condition, and had consumed alcohol and drugs in breach of that program's rules, believing he could control his intake.

Even if that ground of appeal had succeeded, the Court declined to find special circumstances (which would have altered the proportion of the non-parole period to balance of term). Doing so would have produced a non-parole period insufficient to reflect the objective gravity of the offence. That ground of appeal was not upheld.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The sentence imposed on 24 August 2007 was quashed.
  • In lieu, the appellant was sentenced to a non-parole period of 3 years and 4 months commencing 28 February 2007 and expiring 27 June 2010, with a balance of term of 1 year and 2 months commencing 28 June 2010 and expiring 27 August 2011.

Key Takeaways

  • Productive time spent in a residential rehabilitation program before sentencing warrants credit, at approximately 50% of what would apply to ordinary pre-sentence custody, preferably by backdating the sentence commencement date.
  • A sentencing court's failure to translate an acknowledged rehabilitation period into the actual sentence structure constitutes a material error on appeal.
  • Finding that an offender has "no real prospects of rehabilitation" is a conclusion that must be supported by the evidence; a finding of poor or uncertain prospects may be warranted, but the distinction matters.
  • Even where a ground of appeal is made out, the Criminal Appeal Act 1912 s 6(3) constrains the Court of Criminal Appeal from imposing a substituted sentence that does not adequately reflect the objective seriousness of the offence.
  • Declining to find special circumstances remained open where, despite some rehabilitative steps, the history of breaching bonds and program conditions meant the appellant's prospects were not sufficiently strong to justify altering the standard ratio between non-parole period and balance of term.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Hughes v Regina [2008] NSWCCA 48
- R v Delaney (2003) 59 NSWLR 1; [2003] NSWCCA 342
- R v McHugh (1985) 1 NSWLR 588 (cited in Hughes)
- R v Eastway (unreported, NSWCCA, 19 May 1992) (cited in Hughes)
- R v Douglas (unreported, NSWCCA, 4 March 1997) (cited in Hughes)