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Court of Criminal Appeal 27 October 2000

Regina v Alexander [2000] NSWCCA 458 revised - 3

[2000] NSWCCA 458

Also reported as [2000] 118 A Crim R 350
DrugsTheft & property

Citation: Regina v Alexander [2000] NSWCCA 458; (2000) 118 A Crim R 350
Court: Court of Criminal Appeal, New South Wales
Date: 27 October 2000
Judge(s): Whealy J (sitting as the Court of Criminal Appeal)

Background

The appellant had been sentenced in the Drug Court on multiple charges, including a break, enter and steal offence committed at Paddington on 23 June 1999. His sentences were initially suspended to allow him to participate in a drug rehabilitation programme under the Drug Court Act 1998, but he repeatedly failed to complete that programme, absconding from rehabilitation centres on multiple occasions.

Following termination of his Drug Court programme, the sentencing judge re-sentenced him across all charges. For the break, enter and steal offence specifically, the judge imposed a cumulative term of seven months minimum and five months additional, to commence after the other sentences expired. The appellant challenged this sentence on appeal.

The appeal raised questions about the appropriate weight to give the appellant's mental illness when sentencing, the objective seriousness of the particular offence, and the proper use of general deterrence in cases involving offenders with mental illness.

  • Whether the Court of Criminal Appeal had jurisdiction to hear an appeal from a sentence imposed by the Drug Court, and on what basis.
  • Whether the court could receive fresh or additional evidence on such an appeal, and what "special grounds" are required.
  • Whether the sentence imposed for the break, enter and steal offence was excessive in all the circumstances, including the appellant's mental illness, drug dependency, and the objective seriousness of the offence.
  • Whether special circumstances existed justifying a shorter non-parole period relative to the total term.

Decision

Whealy J confirmed that the appeal jurisdiction arose under s 5AF of the Criminal Appeal Act 1912, with the matter heard by a single judge exercising the full powers of the Court of Criminal Appeal. The appeal proceeds by way of rehearing on the original evidence, with fresh evidence only admissible on "special grounds," consistent with the approach endorsed in R v McCrea [2000] NSWCCA 300.

On the substance of the sentence, the court found that the break, enter and steal offence sat well toward the lower end of the objective seriousness scale on its particular facts. The court accepted that the appellant's mental illness was a significant factor, consistent with established sentencing principles holding that an offender's mental illness diminishes the weight properly given to general deterrence.

The court identified special circumstances warranting a non-parole period shorter than the statutory default ratio, given the appellant's particular need for rehabilitation and supervision following release, arising from both his drug and alcohol problems and his mental illness. The cumulative nature of the sentence was retained as an appropriate recognition that re-offending during a Drug Court programme is a serious matter.

Whealy J set aside the sentence of the Drug Court and re-sentenced the appellant to eight months imprisonment, cumulative on the earlier sentences, with a non-parole period of three months.

Orders Made

  • The sentence imposed by Milson DCJ of the Drug Court on 24 February 2000 for the break, enter and steal offence committed at Paddington on 23 June 1999 was set aside.
  • The appellant was re-sentenced to eight months imprisonment commencing 23 September 2000, with a non-parole period of three months.
  • The appellant was ordered to be released on parole on 22 December 2000.

Key Takeaways

  • Appeals from Drug Court sentences lie to the Court of Criminal Appeal under s 5AF of the Criminal Appeal Act 1912, heard by a single judge with the full powers of that court, by way of rehearing on the original evidence.
  • Fresh, additional, or substituted evidence is only admissible on such appeals where "special grounds" are established, a threshold the Court of Criminal Appeal examined in detail in R v McCrea.
  • Under established NSW sentencing principles, an offender's mental illness reduces the legitimate weight given to general deterrence, meaning the offence is not treated as a suitable vehicle for making a general deterrence statement.
  • Special circumstances justifying a reduced non-parole period can arise where an offender has pronounced needs for post-release supervision and rehabilitation, particularly where both mental illness and substance dependency are present.
  • The Drug Court's ordinary practice of vacating imprisonment and substituting a good behaviour bond upon successful programme completion does not preclude the imposition of a cumulative custodial sentence at re-sentencing where the programme has failed due to the offender's own non-compliance.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Drug Court Act 1998 (NSW), ss 6, 7, 12, 73
- Supreme Court Act (NSW)

Cases:
- Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683
- The Queen v McCrea [2000] NSWCCA 300
- The Queen v WHS (NSWCCA, 27 March 1995)
- R v Leon (NSWCCA, 30 November 1994, unreported)
- Histollo Pty Ltd v The Director General of National Parks & Wildlife Services (1998) 45 NSWLR 661
- The Queen v Fahda [1999] NSWCCA 67
- R v Sconamiglio (1991) 56 A Crim R 81
- R v Letteri (NSWCCA, 18 March 1992, unreported)
- R v Engert (1995) 84 A Crim R 68
- R v Mooney (Victoria, 1 June 1978, unreported)
- The Queen v Henry (1999) 46 NSWLR 394