Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Brown v R [2013] NSWCCA 44
• Hearing dates: 7/02/2013
• Decision date: 07 March 2013
• Before: Bathurst CJ at [1]; Fullerton J at [2]; Beech-Jones J at [31]

Decision

1. Grant leave to appeal against sentence.
2. Allow the appeal.
3. Vary the sentence by directing that the non-parole period of 2 years and 6 months commence on 26 November 2011 and to expire on 25 May 2014 and otherwise confirm the sentencing orders.

• Catchwords: CRIMINAL LAW - appeal against sentence - supply prohibited drugs - quasi-custody - whether sentencing judge erred by failing to allow discount for time served in rehabiltation
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Drug Misuse and Trafficking Act 1985
• Cases Cited: Hughes v R [2008] NSWCCA 48; 185 A Crim R 155; R v Campbell [1999] NSWCCA 76; R v Delaney [2003] NSWCCA 342; 59 NSWLR 1; R v Marschall [2002] NSWCCA 197; 129 A Crim R 381; R v McHugh (1985) 1 NSWLR 588; Renshaw v R [2012] NSWCCA 91; Truss v R [2008] NSWCCA 325
• Category: Principal judgment
• Parties: Steven Brown (Applicant); The Crown (Respondent)
• Representation: Counsel: S Pararajasingham (Applicant); M Cinque (Crown); Solicitors: Boulevarde Lawyers (Applicant); Solicitor for Public Prosecutions (Crown)
• File Number(s): 2011/175144

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-08-17 00:00:00
• Before: Maiden DCJ

Judgment

1 BATHURST CJ: I agree with the orders proposed by Fullerton J and with her Honour's reasons.

2 FULLERTON J: The applicant seeks leave to appeal against a sentence imposed by Maiden DCJ on 17 August 2012 for the supply of a prohibited drug, namely 16.4 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985.

3 The maximum penalty for that offence is 15 years imprisonment. Each of the three related offences the subject of a s 166 certificate carried maximum penalties of 2 years imprisonment.

4 After allowing a discount of 25 per cent for the plea of guilty and a finding of special circumstances, the applicant was sentenced to a non-parole period of 2 years and 6 months to date from 6 June 2012 and to expire on 5 November 2014 with a balance of term of 1 year and 3 months to expire on 5 February 2016. His Honour dealt with three related offences on the s 166 certificate under s 10A of the Crimes (Sentencing Procedure) Act 1999.

The facts

5 On 26 May 2011 the applicant booked into a room at the Aloha Motor Inn at Merewether in Newcastle. While he was absent from the room, a member of staff entered the room and discovered what appeared to be illicit drugs together with other drug paraphernalia. The police were informed and attended with a search warrant. Police located $5020 in cash bundled into lots of $1000 together with five resealable bags, three of which contained the methylamphetamine, the subject of the supply charge. The remaining two bags contained cannabis, the subject of the first offence on the s 166 certificate. Traces of a white crystalline substance and two loose pieces of cannabis were also located in the room together with scales, mobile telephones, plastic bags and containers indicative of drug supply.

6 The applicant returned to the room during the search at which time he was found in possession of $1620 which, together with the money already located in the room, was the second of the offences on the s 166 certificate. Also located was a document containing a list of names and numbers, three resealable bags containing traces of methylamphetamine and an orange tablet later found to be morphine, which was the third offence on the s 166 certificate.

7 The applicant was arrested and remanded in custody.

8 On 5 August 2011 he was released to bail on condition that he enter into the residential rehabilitation program at the Bennelong Haven Rehabilitation Centre at Kempsey ("the Bennelong Centre"), that he was not to leave the institution until the completion of the rehabilitation course otherwise than for the purposes of attending court or the offices of his legal representatives, and that he obey all lawful instructions of the program supervisors. The applicant remained a full-time resident at the Bennelong Centre until 18 November 2011, a period of 105 days.

9 On 17 November 2011 the applicant's bail was varied on condition that he transfer to a residential rehabilitation program conducted by the Australian Council on Alcoholism and Drug Dependence (ACADD) at their facility in Newcastle ("the ACADD Facility"). He remained a full-time resident of the Family Drug and Alcohol Recovery program operated from that facility for a period of 152 days. On 19 April 2012 the applicant's bail was varied, on this occasion to permit him to participate in the transitional program run by ACADD and to reside at an address in Toukley for a period of 120 days whilst a participant in that community-based program. He remained subject to that bail condition until the date of sentence on 17 August 2012.

Grounds of appeal

10 The notice of appeal cited two grounds:

(1) The sentencing judge erred by failing to allow the applicant a discount upon his sentence for the quasi-custody served in rehabilitation.

(2) The sentencing judge erred by failing to have regard to the applicant's mental health condition.

11 On the appeal, counsel for the applicant advised that Ground 2 of the appeal would not be pressed in light of the Crown's concession that the sentencing judge was in error by failing to take into consideration, in the applicant's favour, the time spent in both residential rehabilitation centres and that it would be necessary for this Court to move to re-sentence.

Ground 1: The sentencing judge erred by failing to allow the applicant a discount upon his sentence for the quasi-custody served in rehabilitation

12 The applicant tendered on sentence documentary evidence relating to the rehabilitation programs conducted at both residential facilities, together with reports on his progress as a participant in those programs.

13 A letter from Ms Morris, Administration Assistant at the Bennelong Centre, detailed the progress of the applicant whilst a participant in the program conducted from that Centre, summarised as follows:

(i) His adherence to rules was good; general demeanour pleasant; attitude to chores good; speaking at Alcoholics Anonymous meetings very good; interaction with others good and attitude to rehabilitation good;

(ii) He demonstrated a willingness to change and accept advice, he attended all meetings, activities and groups held at this Centre; and

(iii) He returned five negative drug tests.

14 The evidence concerning the operations of the Bennelong Centre also established that residents of that Centre are not permitted to leave for the first three months and thereafter only with the permission of staff members. In addition, residents are subject to supervised random drug and alcohol testing and any breach of the rules can result in the loss of privileges or discharge from the program.

15 Evidence tendered at sentence relating to the residential program conducted at the ACADD Facility indicated that in a regime similar to that which operates at the Bennelong Centre, participants are required to:

(i) Attend a minimum of five meetings of 12 step programs per week (under supervision);

(ii) Attend domestic violence course and relationship counselling;

...

(v) Participate in all in-house groups and meetings;

...

16 Additional documents tendered on sentence from Christa Bidgood, Founder and Program Co-ordinator of the ACADD Facility advised that:

(i) The Centre has three live-in managers available at all times and has nine security cameras monitoring the facility. There are restricted times that a client can leave to shop for personal needs otherwise they may only leave for medical, Probation and Parole Service and Job Network appointments.

(ii) Weekend activities and leave must be approved by staff and only family visitors are allowed in after their belongings are searched.

(iii) Regular room checks and random drug tests are conducted.

(iv) Swearing and raised voices are disciplined.

17 As to the applicant's progress whilst a participant in the program Ms Bidgood advised in a letter dated 4 April 2012:

In total [the applicant] has achieved 8 months recovery from active addiction.

...

This has significantly changed [his] attitudes toward his past life to develop a new and healthier outlook on life. [He] is ready to meet his responsibilities to set up a family home with his partner...

18 In a letter dated 1 August 2012 she reported:

...[The applicant] was assessed on his voluntary request to extend his recovery and continue with a more intense program to gain greater stability and foundation to recovery [from his drug addiction]...

...[The applicant] now blends into the community as a responsible and upstanding citizen in the community.

19 In his sentencing remarks, his Honour referred to the material from the ACADD Facility stating that:

Having read the material from ACADD initially and with the further material that was tendered on the last occasion, I am unable to find that, in fact, the offender was in quasi custody, simply on those authorities.

The establishments that the Court has accepted that would be considered an offender being in quasi custody have or must be equated to a prison environment. This particular establishment does not appear to have that regime.

20 While his Honour did not refer directly to the evidence relating to the Bennelong Centre, his remarks appear to be directed towards the residential rehabilitation programs participated in by the applicant at both facilities.

21 In expressing the view that any quasi-custody must be equated to a prison environment, his Honour did not refer to any authorities nor, it seems, was he referred to Renshaw v R [2012] NSWCCA 91 where Hoeben J reviewed the collected authorities as to the relevance of quasi-custody on sentence as follows:

[30] In Regina v Campbell [1999] NSWCCA 76 Kirby J (with whom Grove J agreed) said on a similar issue:

"24 The last complaint was the failure by his Honour to take account of the time spent by the applicant undergoing rehabilitation. It was appropriate that the applicant should have received recognition, and credit for the time spent in rehabilitation. In R v Eastway (CCA, unreported, 19 May 1992), the Court consisting of Gleeson CJ, Hunt CJ at CL and Mathews J, identified the reasons for doing so. The rehabilitation courses are residential. Persons who undergo them are subject to discipline and restrictions. The Court determined, in that case, that the prisoner should be given credit for half the time spent in rehabilitation. In some cases the proportion has been somewhat higher, as high as 75 percent.

25 Here his Honour did not advert to this aspect, although unquestionably his Honour was aware that the applicant had undergone rehabilitation. It is not apparent from his remarks on sentence that credit was given to the applicant for time spent in rehabilitation. This was an important matter which ought not to have been left to inference. Therefore, I am prepared to find there was error, justifying intervention by this Court, and the setting aside of the sentence. I would therefore give leave to appeal."

[31] In R v Delaney [2003] NSWCCA 342 James J (with whom Santow JA agreed, Barr J dissenting) said:

"19 It was submitted before this Court on behalf of the applicant that her Honour had erred in refusing to take into account the periods the applicant had spent in The Salvation Army programs.

20 Counsel for the applicant referred to decisions of this Court in R v Eastway (unreported 19 May 1992) especially at pp 6 to 7 per Hunt CJ at CL; R v Campbell (unreported 12 April 1999) especially per Kirby J at paras 24 and 25; R v Thompson (unreported [2000] 362) especially per James J at [30].

....

22 In my opinion, her Honour did err in refusing to take into account the time which the applicant had spent in The Salvation Army programs. The programs both in Sydney and Canberra were residential programs. In his letter of 4 April 2002 Major Harmer referred to the strict discipline expected of clients who enter the William Booth program and in his affidavit of 10 November 2003 Major Harmer reiterated that The Salvation Army program is very strict. The letter from Mr Fairhall listed the activities comprised in the program in which the applicant was participating, including carrying out regular community and housekeeping chores as required. In my opinion, the conditions of the residential programs in which the applicant was participating amounted to conditions of quasi-custody."

[32] Similarly, in Hughes v R [2008] NSWCCA 48 Grove J (with whom McClellan CJ at CL and Simpson J agreed) said:

"37 Ground 1 is focussed upon the pre-sentence entry by the applicant into rehabilitation programmes. He was in a residential programme conducted by WHOS for twenty days but he transferred to the Salvation Army Bridge Programme in order to avail himself of the one-to-one counselling available there. A letter from Mr Muendel, the Director, indicated his good response to that programme and suggested that it might profitably be completed, however his Honour declined to permit adjournment for that purpose so that the applicant participated in the latter programme from 12 December 2006 until he was committed into custody on 13 February 2007. It would appear then, that the applicant lived within the confines of residential rehabilitation facilities for about 103 days. It is apparent from Mr Muendel's report and his Honour's findings that the applicant made beneficial use of his opportunities.

38 It is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: R v Eastaway (unreported, NSWCCA 19 May 1992). An allowance of approximately 50 percent of the credit that would be given in respect of pre-sentence custody has been endorsed: R v Douglas (unreported, NSWCCA 4 March 1997). Pre-sentence custody and the similar concept of rehabilitation "custody" is preferably catered for by backdating of the commencement date of sentence: R v McHugh (1985) 1 NSWLR 588. What is here involved is therefore a potential backdating of a little over fifty days. I would reject the Crown submission that this ground should be rejected because that period is de minimis."

22 I am satisfied that the residential rehabilitation program in which the applicant participated is indistinguishable from that with which this Court was concerned in Renshaw, R v Campbell [1999] NSWCCA 76 and Hughes v R [2008] NSWCCA 48; 185 A Crim R 155 and, accordingly, that the sentencing judge was in error in failing to acknowledge the rehabilitation undertaken by the applicant as quasi-custody.

23 In Campbell, the Court was satisfied that error resulted from the failure of the sentencing judge to take into consideration the 12 months the applicant had spent in residential rehabilitation while in Hughes, 103 days in residential rehabilitation was taken into account on re-sentence by backdating the sentence.

24 On re-sentence, the applicant's counsel submitted a discretionary range of between 50 per cent and 75 per cent of the actual time spent in residential rehabilitation, based on the circumstances of the individual case, was expressly recognised as allowable in Campbell at [24].

25 In Truss v R [2008] NSWCCA 325, the applicant had spent six months in quasi-custody before being discharged for returning a positive drug test. Notwithstanding, Latham J allowed for a reduction equivalent to 50 per cent of the time spent in quasi-custody on being satisfied that the treatment in the program had yielded a successful, albeit not a sustained result.

26 In R v Marschall [2002] NSWCCA 197; 129 A Crim R 381 Smart AJ referred to the sentencing considerations that should be taken when determining the extent of a reduction on account of time spent in quasi-custody, namely the applicant's participation in, and the benefit derived from residential rehabilitation, even if in qualified terms, was relevant in determining the discount which would be applied in the sentencing exercise. His Honour held at [30] that:

...Whether any credit should be given and the amount of any credit will depend on all the circumstances, including that the treatment has not yielded a successful result...

27 In this case, I am satisfied that the extended period of residential rehabilitation (totalling 257 days) in which the applicant participated without blemish or breach, coupled with the content of the pre-sentence report dated 2 August 2012, both of which confirmed that the applicant successfully completed both residential rehabilitation programs, and his successful transition to a community-based rehabilitation program (including regular attendance at Alcoholics Anonymous meetings) has demonstrated a level of determination to abstain from his illicit drug use. In addressing what he recognised as the motivating cause of his drug offending, the risk of his future offending may be significantly reduced. For these reasons I am satisfied he is entitled to a discounted sentence at the top of the available discretionary range.

28 I am conscious of the need to ensure that in applying a sentence reduction of the time spent in quasi-custody that the resulting sentence does not fail to reflect the objective seriousness of the offence (see R v Delaney [2003] NSWCCA 342; 59 NSWLR 1).

29 On re-sentence I am guided by the decision of Street CJ in R v McHugh (1985) 1 NSWLR 588, referred to more recently by Grove J in Hughes at [38] as to the approach to best achieve that result. I propose to backdate the commencement date of the sentence imposed against the applicant by a period of 193 days (being 75 per cent of 257 days).

30 The orders I propose are as follows:

1. Grant leave to appeal against the sentence imposed on 17 August 2012.

2. Allow the appeal.

3. Vary the sentence imposed on 17 August 2012 by directing that the non-parole period of 2 years and 6 months commence on 26 November 2011 and to expire on 25 May 2014 and otherwise confirm the sentencing orders.

31 BEECH JONES J: I agree with Fullerton J and the orders her Honour proposes.

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Decision last updated: 08 March 2013