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District Court 28 October 2015

Howard v R (No 2)

[2015] NSWDC 318

DrugsTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE STRING OF THEFT OFFENCES DRUG POSSESSION PURPOSES OF SENTENCING FINAL ORDERS

Citation: Howard v R (No 2) [2015] NSWDC 318
Court: District Court of New South Wales
Date: 28 October 2015
Judge: Cogswell SC DCJ

Background

The appellant, Damon John Howard, had appealed against sentences imposed by a Local Court Magistrate at Taree for a string of theft offences and drug possession. The District Court had partially allowed that appeal in June 2015, but adjourned the proceedings rather than finalising orders immediately. The adjournment gave the appellant time to secure a placement at a residential rehabilitation centre, which the court indicated would influence the final sentence structure.

By the time the matter returned in October 2015, the appellant had completed a horticulture course in custody and been accepted into Benelong's Haven Rehabilitation Centre, with a bed available from the day of the hearing. The court received an updated pre-sentence report and a letter from the facility confirming the placement.

  • Whether to finalise the appeal against sentence by imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) in place of the individual sentences imposed by the Magistrate
  • Whether to direct the appellant's immediate release on parole under s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW), conditional on attendance at residential rehabilitation
  • Whether a single institutional misconduct incident during custody was sufficient to alter the sentencing approach foreshadowed in June 2015

Decision

The court confirmed the approach it had flagged in June 2015: a reduced non-parole period of nine months would apply, provided the appellant had a confirmed rehabilitation placement and would proceed directly from prison to that facility. The bed confirmation from Benelong's Haven satisfied that condition, and the updated pre-sentence report supported the appellant's apparent motivation to address his alcohol and drug issues.

Cogswell SC DCJ noted one institutional misconduct incident recorded in the pre-sentence report but declined to treat it as a reason to depart from the intended course. Without details of the circumstances, the incident was not sufficient to change the outcome.

Using s 53A of the Crimes (Sentencing Procedure) Act 1999, the court consolidated the three separate sentences into a single aggregate sentence of 18 months. The non-parole period was fixed at nine months and nine days, expiring on the day of the hearing, which allowed for immediate release on parole subject to strict conditions tied to the rehabilitation program.

Orders Made

  • The appeals against sentence were allowed under s 20(2) of the Crimes (Appeal and Review) Act 2001 (NSW); the Magistrate's sentences were set aside
  • An aggregate sentence of 18 months was imposed, commencing 20 January 2015 and expiring 18 July 2016
  • A non-parole period of nine months and nine days was fixed, commencing 20 January 2015 and expiring 28 October 2015
  • The appellant was directed to be released on parole immediately under s 50 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Parole conditions included: release into the care of a nominated person; direct transfer to Benelong's Haven Rehabilitation Centre; remaining at the centre for the duration of the program and complying with all reasonable staff directions; reporting to Community Corrections at Kempsey within five working days of completing the program; and ongoing supervision by Community Corrections until the parole period expires

Key Takeaways

  • The District Court used s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to replace multiple individual sentences with a single aggregate sentence, streamlining the final sentencing outcome across three separate appeals
  • Adjourning sentence proceedings to allow an offender time to secure a rehabilitation placement can form part of a deliberate sentencing strategy, where the court foreshadows conditional outcomes and then confirms them once evidence of placement is produced
  • A single recorded institutional misconduct incident, without any details of its circumstances, was held insufficient to displace the court's intended approach
  • Parole conditions can be structured to require direct transfer from custody to a residential rehabilitation facility, with ongoing compliance obligations to both the facility and Community Corrections
  • Where an updated pre-sentence report and independent confirmation from a rehabilitation centre both supported the offender's readiness and acceptance, the court treated that material as satisfying the conditions it had set at the earlier hearing

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), s 20(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50, 53A

Cases cited: None recorded in the judgment.