Alvares v R Farache v R

Judgment 1McCLELLAN CJ at CL ; I agree with Buddin J. 2BUDDIN J : These applications for leave to appeal, which were heard together by consent, involve challenges to the sentences imposed upon the applicants in the District Court. Each of the applicants pleaded guilty to various drug offences which were committed in contravention of the Criminal Code Act 1995 (Cth). 3The applicant Alvares stood for sentence in respect of the following offences: Count One: Conspiracy to Import Commercial Quantity of a Border Controlled Precursor. Between about 7 June 2007 and 25 July 2007 at Sydney, in the State of New South Wales and elsewhere, did conspire with Hassan Farache and Shelton Chowsen and divers others to import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely phenyl-2-propanone (P2P), and the quantity being a commercial quantity. Offence on Schedule: Conspiracy to Pre-Traffic a Commercial Quantity of a Border Controlled Precursor. Between about 7 June 2007 and 25 July 2007 at Sydney, in the State of New South Wales and elsewhere, did conspire with Hassan Farache and Shelton Chowsen and divers others to pre-traffic in a substance, the substance being a border controlled precursor, namely phenyl-2-propanone (P2P), and the quantity pre-trafficked being a commercial quantity. Count Two: Import a Commercial Quantity of Border Controlled Precursor (P2P). Between 28 February 2008 and 12 March 2008, at Sydney in the State of New South Wales and elsewhere did import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely phenyl-2-propanone,(P2P) and the quantity imported being a commercial quantity. Count three: Attempt to Possess Commercial Quantity of Methylamphetamine. Between 23 March 2007 and 25 March 2007, in the State of New South Wales and elsewhere, did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methylamphetamine, and the quantity possessed being a commercial quantity. 4The applicant Farache stood for sentence in respect of the following offences: Count One: Conspiracy to Pre-Traffic a Commercial Quantity of a Border Controlled Precursor. Between about 7 June 2007 and 25 July 2007 at Sydney, in the State of New South Wales and elsewhere, did conspire with Richard Alvares and Shelton Chowsen and divers others to pre-traffic in a substance, the substance being a border controlled precursor, namely phenyl-2-propanone (P2P), and the quantity pre-trafficked being a commercial quantity. Offence on Schedule: Conspiracy to Import Commercial Quantity of a Border Controlled Precursor. Between about 7 June 2007 and 25 July 2007, at Sydney in the State of New South Wales and elsewhere, did conspire with Richard Alvares and Shelton Chowsen, and divers others to import a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controller precursor, namely phenyl-2-propanone (P2P), and the quantity pre-trafficked being a commercial quantity. Count Two: Aid and Abet importation of a Commercial Quantity of Border Controlled Precursor. Between 28 February 2008 and 12 March 2008, at Sydney in the State of New South Wales and elsewhere, did aid and abet the importation of a substance, intending to use or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely phenyl-2-propanone, (P2P) and the quantity imported being a commercial quantity. 5Each of the offences on the indictment, as well as each of the matters on the schedule, attracted a maximum penalty of imprisonment for 25 years and/or 5000 penalty units. 6The applicant Alvares was sentenced in respect of count 3, to 6 years imprisonment to date from 24 April 2008. In respect of count 2, he was sentenced to 6 years imprisonment to date from 24 April 2010. In respect of count 1, and taking into account the matter on the schedule, he was sentenced to 8 years imprisonment to date from 24 April 2012. The effective head sentence was accordingly 12 years imprisonment. His Honour fixed, as he was obliged to do, a single non-parole period of 7 years which will expire on 23 October 2015. 7The applicant Farache was sentenced in respect of count 2, to 5 years imprisonment to date from 24 July 2008. In respect of count 1, and taking into account the matter on the schedule, he was sentenced to 7 years imprisonment to date from 24 July 2010. The effective head sentence was accordingly 9 years imprisonment and a non-parole period of 5 years, which will expire on 23 January 2014, was fixed. 8His Honour indicated that the sentences were structured in a manner that gave effect to the principles of totality: see Pearce v The Queen (1998) 194 CLR 610. 9Each of the applicants was arrested and taken into custody on 24 April 2008. As is apparent, the sentence in respect of the applicant Alvares was backdated to that date. However, a later commencement date was selected by his Honour in respect of the applicant Farache to take account of other sentences which he was then serving. On 15 October 2008 he received a sentence of 12 months imprisonment with a non-parole period of 9 months to date from 24 March 2008 (that is,1 month prior to his arrest for these matters) in the Local Court for offences of goods in custody (consisting of a driver's license) and possession of ammunition without a permit. Those items were discovered by police during the course of executing a search warrant upon the applicant's premises in relation to the present offences. At the same time the applicant was also sentenced in the Local Court in respect of unrelated offences of drive whilst disqualified, have false instrument and possess prohibited weapon. He was sentenced in respect of each of those charges to concurrent terms of imprisonment of 12 months with a non-parole period of 9 months to date from 15 October 2008. On appeal, the non-parole periods in respect of that latter group of offences were reduced to 7 months, the consequence being that that period expired on 14 May 2009. The sentencing judge indicated that it was his intention to commence the sentences for the present matters on 24 October 2008, a date which he selected because it was 7 months from 24 March 2008. Nevertheless, when his Honour passed sentence, he ordered as I have indicated, that the sentences should commence on 24 July 2008. It is apparent that the applicant Farache has inadvertently received the benefit of that 3 month period. 10The applicant Alvares relies upon the following grounds of appeal: