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Court of Criminal Appeal 9 December 2016

Willmott v R

[2016] NSWCCA 256

DrugsTheft & property
SENTENCE APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE DRUG COURT ACT 1998 S 5A DRUG COURT REGULATION 2015 REG 5

Citation: Willmott v R [2016] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 9 December 2016
Judge(s): Meagher JA; Harrison J; R A Hulme J

Background

The appellant was sentenced in the Drug Court at Toronto following guilty pleas to twelve offences, including two aggravated break and enter charges and ten summary offences. The offending involved entering the residences of elderly women at a Veterans' Affairs village on Anzac Day and Mother's Day, as well as entering schools and other premises to steal cash. The appellant was motivated by a serious drug dependency.

He was initially accepted into the Drug Court program and an "initial sentence" was imposed. The program was later terminated after he left a residential rehabilitation facility and committed further offences. Judge Cloran then imposed a final aggregate sentence of 5 years and 9 months, with a non-parole period of 3 years and 10 months.

The appellant sought leave to appeal the sentence as manifestly excessive and also sought a fresh referral to the Drug Court program.

  • Whether the aggregate sentence of 5 years and 9 months (non-parole period 3 years and 10 months) was manifestly excessive.
  • Whether the Court of Criminal Appeal had jurisdiction to hear the appeal against both indictable and summary offences together, given the mixed composition of the aggregate sentence.
  • Whether the appellant remained eligible for the Drug Court program, specifically whether he satisfied the residential catchment area requirement under reg 5(a) of the Drug Court Regulation 2015.
  • Whether, on confirming a sentence of imprisonment, this Court was obliged to consider referring the appellant to the Drug Court for a compulsory drug treatment (CDT) order under s 5A of the Drug Court Act 1998.

Decision

On the question of jurisdiction, the Court confirmed that indictable offences dealt with summarily fall within the meaning of "summary offence" in s 5AF(3)(b) of the Criminal Appeal Act 1912, consistent with the approach in Moses v R [2015] NSWCCA 218. Because the aggregate sentence covered both indictable and summary offences, the Acting Chief Justice directed that the appeal against the summary offences be determined by the same bench as the indictable offences.

On manifest excess, the Court dismissed the appeal. The sentencing judge had properly considered the objective seriousness of the offending, the appellant's extensive prior record for like offences, the particular vulnerability of the elderly victims, and the aggravating circumstances of the offending dates. The Court found no error in the exercise of sentencing discretion.

On the Drug Court referral question, the Court examined whether the appellant satisfied the criteria in s 5A of the Drug Court Act 1998 and reg 5 of the Drug Court Regulation 2015. The only genuinely contested criterion was reg 5(a), which requires residence in a nominated catchment area. The Court found the issue of the appellant's relevant place of residence remained unresolved on the available evidence, but considered there was sufficient doubt to warrant further investigation.

Accordingly, rather than making a fresh referral to the Drug Court program under the prior scheme, the Court acted under its statutory duty, as a court confirming a sentence of imprisonment, to refer the appellant to the Drug Court to determine whether he should be made subject to a compulsory drug treatment order.

Orders Made

  • Appeal against sentence dismissed.
  • Appellant referred to the Drug Court to determine whether he should be the subject of a compulsory drug treatment order.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing judge's use of the appellant's prior record to inform considerations of retribution, deterrence, and community protection, without inflating the objective seriousness of the current offences, was consistent with the principles in Veen v The Queen (No 2) (1988) 164 CLR 465.
  • Where an aggregate sentence from the Drug Court covers both indictable and summary offences, the Court of Criminal Appeal can hear the appeal against all offences together before a bench directed by the Chief Justice.
  • Under s 5AF(3)(b) of the Criminal Appeal Act 1912, indictable offences dealt with summarily are treated as summary offences for the purposes of Drug Court appeals, consistent with Moses v R.
  • A court confirming a sentence of imprisonment has a statutory duty under the Drug Court Act 1998 to ascertain whether grounds exist for finding an offender eligible as a convicted offender, and if so to refer the matter to the Drug Court for determination of a compulsory drug treatment order.
  • Sufficient doubt about the residential catchment eligibility requirement under reg 5(a) of the Drug Court Regulation 2015 was, on the facts here, enough to warrant referral to the Drug Court for a more thorough factual examination, rather than treating the question as foreclosed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Drug Court Act 1998 (NSW), ss 4, 5, 5A, 7A, 12, 15
- Drug Court Regulation 2015 (NSW), reg 5
- Inclosed Lands Protection Act 1901 (NSW)

Cases
- AB v The Queen (1999) 198 CLR 111
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Dinsdale v The Queen (2000) 202 CLR 321
- Hili v The Queen (2010) 242 CLR 520
- Lowndes v The Queen (1999) 195 CLR 665
- Markarian v The Queen (2005) 228 CLR 357
- Moses v R [2015] NSWCCA 218
- R v Beale [2015] NSWCCA 120
- R v Engert (1995) 84 A Crim R 67
- R v Tuuta [2014] NSWCCA 40
- Veen v The Queen (No 2) (1988) 164 CLR 465