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District Court 23 June 2009

WISEMAN, Maxwell Leslie Thomas v R

[2009] NSWDC 439

Theft & property
CRIMINAL LAW SENTENCE APPEAL BREAK AND ENTER WITH INTENT CONVICTED AFTER HEARING CRIMINAL RECORD PRE

Citation: WISEMAN, Maxwell Leslie Thomas v R [2009] NSWDC 439
Court: District Court of New South Wales
Date: 23 June 2009
Judge(s): Cogswell SC DCJ

Background

The appellant was convicted after a Local Court hearing of break and enter with intent, an offence under s 113(1) of the Crimes Act 1900, committed at Dubbo on 21 January 2007. He had entered a private residence while the occupant's wife and young child were inside, though he took nothing and left after a confrontation with the homeowner. The Magistrate sentenced him to two years imprisonment with an eighteen-month non-parole period.

The appellant did not contest his conviction but appealed to the District Court against the severity of the sentence. He sought a non-custodial order, pointing to his efforts to address a long-standing and serious drug addiction that had been the primary driver of his offending history.

After serving just over a month in custody, the appellant obtained bail and entered the Benelong's Haven Family Rehabilitation Centre on approximately 27 November 2008. The appeal was adjourned to allow him to demonstrate his rehabilitation prospects in practice.

  • Whether the Magistrate's sentence of two years full-time imprisonment should be set aside on appeal under s 20 of the Crimes (Appeal and Review) Act 2001
  • Whether a non-custodial order under s 9 of the Crimes (Sentencing Procedure) Act 1999 was appropriate given the appellant's criminal history, personal circumstances, and demonstrated rehabilitation

Decision

Cogswell SC DCJ set aside the Magistrate's sentence and substituted a three-year good behaviour bond. The court's reasoning centred on the appellant's genuine and demonstrable progress in rehabilitation during the period following sentencing.

The appellant had spent over six months at Benelong's Haven, a residential rehabilitation facility. Three successive reports from the centre confirmed negative drug tests (other than methadone prescribed as part of treatment), good compliance with rules, and a positive attitude toward recovery. The court observed that residence at the centre, while not equivalent to full-time custody, involved a meaningful restriction on liberty that warranted consideration in sentencing.

The court acknowledged the appellant's lengthy criminal record, which included prior break and enter offences and multiple periods of imprisonment. However, it noted that his previous good behaviour bonds had never been breached, and that his drug addiction had been identified as the primary cause of his offending. The Probation and Parole Service had assessed him as unsuitable for a community service order and ineligible for periodic detention.

After adjourning the appeal under s 11 of the Crimes (Sentencing Procedure) Act 1999 to assess rehabilitation prospects, the court heard the appellant give evidence. Cogswell SC DCJ noted being impressed by his testimony and his commitment to recovery, describing the case as one involving genuine efforts to overcome significant personal problems.

Orders Made

  • The sentence imposed by the Magistrate was set aside under s 20(2) of the Crimes (Appeal and Review) Act 2001
  • In substitution, the appellant was directed under s 9 of the Crimes (Sentencing Procedure) Act 1999 to enter into a good behaviour bond for three years on the following conditions:
  • To be of good behaviour
  • To notify the Registrar of the District Court at Dubbo of any change of residential address
  • To appear before the court if called upon
  • To submit to supervision by the Probation and Parole Service and accept reasonable recommendations regarding grief counselling, drug and alcohol counselling, employment advice, and urinalysis
  • To report to the Dubbo Probation and Parole Service within seven days of the order

Key Takeaways

  • The District Court substituted a good behaviour bond for a term of full-time imprisonment where the appellant had served approximately one month in custody and then spent over six months in residential rehabilitation, with verified drug-free progress.
  • A sentencing court adjourning an appeal under s 11 of the Crimes (Sentencing Procedure) Act 1999 may use the adjournment period to assess whether rehabilitation has, in fact, occurred, rather than relying solely on stated intentions.
  • Residential rehabilitation, while not equivalent to imprisonment, was treated as a relevant factor in mitigation, given the restrictions on liberty it imposed.
  • A history of prior bonds with no recorded breaches can weigh in favour of a further bond, even where the offender has a lengthy criminal record and previous terms of imprisonment.
  • Under s 9 of the Crimes (Sentencing Procedure) Act 1999, a good behaviour bond may be accompanied by detailed supervision conditions addressing specific rehabilitation needs identified by Probation and Parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 113(1) (break and enter with intent)
- Crimes (Appeal and Review) Act 2001 (NSW) s 20
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 11, 12

Cases cited: None cited in the judgment.