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[2006] NSWCCA 409
Court of Criminal Appeal (NSW)
2006-12-21
McClellan CJ, Hidden J, Hislop J
Original judgment source is linked above.
The Application 9 Counsel for the applicant, Mr Jones, argued the application on two bases: firstly, that his Honour gave insufficient weight to the substantial delay in the prosecution of the charge of supplying the drug and, secondly, that his Honour erred in wholly accumulating the sentence for the second charge upon that for the first, leading to an overall sentence which is manifestly excessive. A ground developed in written submissions that there was unjustified disparity between the applicant's sentence on the second charge and that of a co-offender was not pressed at the hearing.
Delay 10 As I have said, the offence of supplying the drug was committed in May 2002 but the applicant was not charged with it until August 2004. A further 18 months elapsed until he was sentenced in February 2006, although that appears to be attributable to the normal progress of the matter through the court system, including the fact that the plea of guilty was entered at a late stage. 11 His Honour referred to this matter in his remarks, noting that the applicant's legal representative before him (who was not Mr Jones) did not submit that the delay between the commission of the offence and the applicant's arrest should be taken into account in mitigation of sentence. His Honour added, "That is clearly so as the offender was not aware that he was under suspicion from the police until the day of his arrest." 12 This, it seems to me, is the short answer to Mr Jones' submission before us. It is appropriate to have regards to the whole of the period between the offence and sentence, but it is significant that the greater part of that period was before the applicant's arrest. This is not a case, such as R v Todd [1982] 2 NSWLR 517, in which an offender knows he must face sentence but is kept in suspense for a long period because of the operation of the criminal justice system. This is not to deny that there may be cases where a long delay between offence and arrest may be relevant to sentence, for example, where the offender has spent that time in a state of emotional turmoil, fearing exposure and disgrace: see the observations of Allen J in R v Holyoak (1995) 82 A Crim R 502 at 508-9. Nothing of that kind is suggested here. Speaking of delay generally, Allen J said (at 508): Whether, in any particular case, …a delay is a detriment depends on the circumstances of that case. There is no rule of law that it always is a detriment - although often it will be. 13 Mr Jones did not point to anything in the evidence in the present case to show that the applicant suffered a relevant detriment as a result of the delay. I would reject this ground of the application.
Accumulation 14 Mr Jones did not submit that the sentence on each charge, viewed in isolation, is excessive. Rather, he argued that, in ordering that they be served cumulatively, his Honour had failed to have regard to the principle of totality and imposed a total sentence which could fairly be described as crushing. Mr Jones acknowledged that a measure of accumulation was appropriate but he argued that it should have been partial, rather than total. 15 His Honour approached the matter in accordance with the familiar principles expounded in Pearce v The Queen (1998) 194 CLR 610, assessing the appropriate sentence for each offence before considering questions of accumulation or concurrence, as well as totality. He concluded that the sentences should be totally accumulated, noting that the applicant's legal representative had not argued the contrary. That accumulation was part of his reason for finding special circumstances in the sentence for the second charge, justifying a departure from the usual proportion between a sentence and non-parole period. 16 Mr Jones pointed out that the principle of totality is applicable to the determination of a head sentence, not just a non-parole period: Mill v The Queen (1998) 166 CLR 59 at 66. In submitting that the total sentence and the effective non-parole period are manifestly excessive, he referred not only to the delay in the disposition of the first charge but also to the applicant's background and character, his favourable prospects of rehabilitation and his pleas of guilty, which his Honour saw as an expression of his remorse. His Honour found that those pleas entitled the applicant to a reduction of sentence "in the order of 15%" for their utilitarian value and added that there should be "some further reduction" for the remorse which they demonstrated, although he did not quantify it. 17 Mr Jones' concession about the appropriateness of the sentence on each charge, viewed individually, was realistic. His Honour rightly took a serious view of the drug offence, even though no heroin was actually supplied. He described the break and enter offence as "extremely serious", involving "violence and forcible entry to the victim's premises" and an "extremely high" degree of intimidation. Making all due allowance for the favourable aspects of the applicant's subjective case, salutary sentences were called for. The question remains whether, applying the principle of totality, the aggregate sentence is such as to require this Court's intervention. 18 In all the circumstances, including the applicant's subjective case, an overall sentence of imprisonment for eight years is severe. Given his Honour's discount of 15% for the utilitarian value of the pleas of guilty, together with an unquantified additional reduction for remorse, the starting point must have been in the order of ten years. In my view, the aggregate sentence is manifestly excessive. It was open to his Honour to pass wholly cumulative sentences, as the offences were entirely unconnected and separated by a significant period of time. In that event, however, it was necessary to consider whether the principle of totality required some moderation of the sentence appropriate for one or both of them: Johnson v The Queen [2004] HCA 15, 78 ALJR 616, in the joint judgment at [18]ff. With respect, it appears from the sentences which were imposed that his Honour did not undertake this exercise. 19 In my view, the aggregate sentence and the effective non-parole period should each be reduced by one year. Consistently with the trend of authority examined in Johnson, I think it preferable that this be achieved by the partial accumulation of the sentences. Accordingly, I would grant leave to appeal and allow the appeal. I would confirm the sentences passed in the District Court, but would direct that the sentence on the second charge commence on 6 August 2006. The applicant would be eligible for release on parole on 6 November 2008. 20 HISLOP J: I agree with Hidden J. **********
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Chang
Regina
R v Todd [1982] 2 NSWLR 517 R v Holyoak (1995) 82 A Crim R 502 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 Mill v The Queen (1998) 166 CLR 59 Johnson v The Queen [2004] HCA 15
(1998) 194 CLR 610
(1998) 166 CLR 59