Citation: Fernando, Cecil George v R [2011] NSWDC 167
Court: District Court of New South Wales
Date: 22 September 2011
Judge: Cogswell SC DCJ
Background
The appellant pleaded guilty in the Moree Local Court to four offences: assault occasioning actual bodily harm against his brother (committed in January 2011), disguising his face with intent to commit larceny, committing that same offence having a prior conviction for it, and resisting police (all committed in April 2011). The assault arose from a domestic altercation. The April offences occurred when the appellant and others were found at a motor inn at 4:30 in the morning attempting to open car doors, with the appellant wearing dark clothing and his jacket pulled up over his face to conceal his identity.
The Moree Local Court sentenced the appellant to twelve months imprisonment for the assault, and eighteen months with a twelve-month non-parole period for the three April offences, with the sentences running concurrently. The magistrate had already extended considerable leniency by allowing concurrent sentences despite the offences being roughly three months apart, and by setting the non-parole period below the standard 75 percent of the full term.
The appellant appealed to the District Court seeking a further reduction of the non-parole period from twelve months to nine months, on the basis that this would allow him to undertake a residential rehabilitation program in the community.
Legal Issues
- Whether the non-parole period should be reduced further below the standard proportion, to nine months, to allow the appellant to complete residential rehabilitation upon release.
- Whether special circumstances existed under the sentencing framework to justify a further reduction.
- How the competing sentencing considerations of community protection, specific deterrence, rehabilitation, and the appellant's personal background and history of alcohol abuse should be weighed.
Decision
Cogswell SC DCJ acknowledged the significant weight of factors against further reducing the non-parole period. The appellant had an extensive criminal history stretching from childhood, had previously received a substantial sentence for robbery in company, and had committed all four current offences while still on parole. Offending while on parole is an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999. The court also noted that the assault occurred in the presence of a child, adding further gravity.
The court accepted, however, that the appellant's background warranted some weight on the other side of the scales. He had been exposed to alcohol abuse from a very early age, left school in Year 8, and had limited employment prospects. He had undertaken rehabilitation programs in custody, including the SMART program, and was enrolled in further programs at the time of the appeal. Critically, he had never completed a residential rehabilitation program in the community, and the court identified this as a relevant special circumstance.
His Honour decided to reduce the non-parole period to nine months, but only on the condition that a place at a residential rehabilitation centre could be confirmed. The court acknowledged expressly that this decision carried some risk to the community and potentially to the appellant's own family. The matter was stood over for approximately one month to allow information about rehabilitation placements to be gathered.
The court indicated that parole conditions would require the appellant to attend and complete the rehabilitation program immediately upon release, with departure from the program constituting a breach of parole. His Honour placed on record that the appellant was unlikely to receive further leniency from the courts if he did not take the opportunity.
Orders Made
• Non-parole period reduced to nine months, expiring on 12 January 2012
• Matter stood over for approximately one month to receive information about rehabilitation centres
• Parole conditions to include: attendance at a residential rehabilitation centre immediately upon release, acceptance of all reasonable recommendations and directions from the centre, and completion of the rehabilitation program
• A departure from the rehabilitation program to constitute a breach of parole
• Transcript of reasons to be taken
Key Takeaways
- The District Court confirmed that an extensive criminal history, particularly one showing offending only stops during periods of custody, weighs heavily against further reduction of a non-parole period and requires greater emphasis on specific deterrence and community protection.
- Committing offences while on parole is both a significant aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 and a matter bearing on the prospects of rehabilitation.
- Special circumstances justifying a reduction in the standard non-parole period ratio can include an offender's total absence of community-based rehabilitation, particularly where that absence is connected to entrenched disadvantage and early exposure to alcohol abuse.
- A conditional approach to reducing a non-parole period is available: the court here made its reduction contingent on confirmation of a residential rehabilitation placement, rather than finalising the matter immediately.
- In reducing the sentence, the court made explicit on the record that the decision carried community risk, demonstrating that such candour is appropriate when leniency is extended to a repeat offender with a concerning pattern of reoffending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 38, 59, 114, 115
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases cited: No cases were cited in the judgment.