Citation: Pattiapon v R [2018] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 9 February 2018
Judges: Simpson JA, R A Hulme J, Hidden AJ
Background
The applicant, an Indonesian-born man aged 45 at the time of the offences, was found by police in Surry Hills in March 2015 carrying methylamphetamine, a range of other drugs, a conducted electrical weapon disguised as a torch, and five knives. He was sentenced in the District Court at Parramatta in July 2016 on two primary charges: supplying a prohibited drug and possessing a prohibited weapon without a permit. Both sentences of imprisonment were suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), conditional on the applicant completing supervision and drug and alcohol counselling.
The applicant's compliance with the bond conditions was poor. He repeatedly missed appointments with his supervising officer, continued using methamphetamine, and attended the St Vincent's Treatment Program on only one occasion despite being directed to engage with it. A breach report was filed in November 2016 and the matter came before Syme DCJ in March 2017.
Syme DCJ revoked the suspended sentences and activated the terms of imprisonment. She accepted that special circumstances existed to justify a non-parole period below the statutory default, resulting in a non-parole period of 12 months for the weapons offence and a fixed term of 12 months for the drug supply offence, both commencing 28 February 2017. The applicant then sought leave to appeal against sentence.
Legal Issues
- Whether the sentencing court failed to adequately assess the applicant's possible mental illness
- Whether the sentencing court erred by not giving specific regard to the applicant's sexual orientation and nationality as factors of vulnerability
- Whether the sentencing court failed to give adequate weight to the applicant's prospects of drug and alcohol rehabilitation
- Whether the sentencing court erred by failing to foresee that the Department of Correctional Services would breach a duty of care, resulting in the applicant being assaulted in custody and having his security classification downgraded
- Whether the sentences were manifestly excessive
Decision
Ground 1: Mental illness. The court found no evidentiary basis for this ground. Neither Delaney ADCJ nor Syme DCJ had any expert evidence before them establishing mental illness. The applicant's own experienced counsel had told the sentencing court that there was "no disability" he could point to. A scant reference to depression in a pre-sentence report, unsupported by any psychological or psychiatric evidence, was insufficient to require either judge to make a positive assessment of mental illness. Post-sentencing events, including a PTSD assessment made after an alleged assault in custody, could not establish that the sentencing proceedings had miscarried.
Ground 2: Sexual orientation and nationality. The court rejected this ground. No material was placed before either sentencing court to support a submission that the applicant's sexual orientation or nationality exposed him to a foreseeable risk of harm in custody. Post-sentencing events of harassment and assault, while serious if accurate, were not matters that could retroactively demonstrate error in the sentencing process below.
Ground 3: Rehabilitation prospects. The court found that, far from being overlooked, a proper assessment of rehabilitation prospects would have pointed toward a longer non-parole period. The applicant had attended only one session of the directed treatment program, admitted to daily methamphetamine use, and demonstrated poor compliance throughout the supervision period. There was no merit in the complaint that the 12-month non-parole period (55 per cent of the head sentence) was manifestly excessive. Commendable rehabilitative steps reportedly taken in custody were not matters bearing on the integrity of the sentencing process.
Ground 4: Failure to foresee breach of duty of care. The court dismissed this ground entirely. A sentencing court is not required to foresee, and factor in, contingent future events involving third parties such as an assault by other inmates. Post-sentencing events of this kind are only available to an appellate court in very limited circumstances, and no such circumstances were established here.
Orders Made
- Time for filing the Notice of Application for Leave to Appeal extended to 13 November 2017
- Leave to appeal against sentence refused
Key Takeaways
- No error was established in the sentencing process where the only evidence before the court suggested no mental health disability, and post-sentencing psychiatric diagnoses cannot retroactively demonstrate a miscarriage in earlier proceedings.
- A sentencing court is not required to make findings about an offender's vulnerability arising from sexual orientation or nationality in the absence of material specifically placed before it to support such a finding.
- Poor compliance with a suspended sentence bond, including continued drug use and failure to engage with directed treatment programs, is a factor that could properly support a longer rather than shorter non-parole period when the bond is revoked.
- The Court of Criminal Appeal confirmed that its jurisdiction is largely concerned with the integrity of proceedings in the court below; post-sentencing events such as assaults in custody or changes in security classification generally fall outside the scope of an appeal against sentence.
- Under ss 98 and 99 of the Crimes (Sentencing Procedure) Act 1999, where a good behaviour bond is revoked following admitted breaches, the provisions of Part 4 of the Act apply, including the requirement to set a non-parole period and to consider special circumstances.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 12, 24, 98, 99
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases cited: No cases were cited in the judgment.