Jamie Peter DOLMAN v R

Court of Criminal Appeal (NSW)|2009-12-11|Before: Hidden J, Johnson J, Clellan CJ

The application 12 Counsel for the applicant, Mr Johnston, argued the application on three grounds: his Honour erred in the manner in which he arrived at the sentence for the ongoing supply offence; the aggregate sentence fails to allow for an adequate period of parole eligibility; the aggregate sentence is manifestly excessive.

Ongoing supply sentence 13 Towards the end of his remarks, his Honour expressed the sentence he intended to pass for the ongoing supply as a total term of imprisonment for 3 years with a non-parole period of 2 years and 6 months. He then asked the Crown's representative whether the "statutory ratio" was "right" in relation to that sentence. The prosecutor said that it did not appear to be. His Honour then confirmed the non-parole period of 2 years and 6 months, but vacated the total term of 3 years and substituted the term of 3 years and 4 months. 14 Clearly, by "statutory ratio" his Honour meant a non-parole period amounting to 75% of the sentence. That result was achieved by increasing the sentence from 3 years to 3 years and 4 months. By that approach his Honour fell into error, as the Crown prosecutor in this Court properly conceded. 15 It is apparent that his Honour determined the non-parole period first and then sought to arrive at the head sentence by the application of the statutory ratio. Section 44(1) of the Crimes (Sentencing Procedure) Act provides that a court, when sentencing an offender to imprisonment, "is first required to set a non-parole period for the sentence …". However, that provision is concerned with the manner in which a sentence is pronounced, not how it is arrived at. 16 This question was considered by Simpson J, with whom Dunford J and I agreed, in R v Tobar [2004] NSWCCA 391, 150 A Crim R 104 at [31] - [39]. As her Honour put it at [38], the section requires the non-parole period "first to be specified, or pronounced", but not to be "the first determined." The reasoning in Tobar was applied in two subsequent cases, dealt with on the same day: R v Suaalii [2005] NSWCCA 206 at [23] - [26], and R v Mauai [2005] NSWCCA 207 at [24] - [27]. 17 The error identified in those three cases was somewhat different from that in the present case. In each of those cases the sentencing judge had reflected a finding of special circumstances by increasing the balance of term of the sentence rather than reducing the non-parole period. Nevertheless, the principle which guided those decisions, affirming the primacy of the head sentence in any sentencing exercise, is applicable to the present case. As Simpson J expressed it in Tobar at [37], "the focus should still be upon the total of the sentence imposed …". The principle was restated in Suaalii by Hislop J, with whom James and Hall JJ agreed, at [25]. 18 I am satisfied that in this respect the sentencing process in the present case miscarried, and that this Court should intervene.

Parole eligibility 19 As I have said, the aggregate sentence, rounded off, is imprisonment for 4 years and 10 months with an effective non-parole period of 4 years. That non-parole period is more than 80% of the total sentence. There is force in Mr Johnston's argument that the custodial proportion of the sentence is too high, leaving an inadequate period of parole eligibility. 20 As already noted, in the sentence proceedings the focus of the argument about special circumstances was whether the applicant's subjective circumstances called for a longer than usual period of parole eligibility, and that appears to be the only basis upon which his Honour approached the matter. The question whether the non-parole period for the ongoing supply offence should be adjusted so as to maintain the proportion of 75% between effective non-parole period and aggregate sentence does not seem to have been considered. In my view, that is the course which should have been adopted. 21 In so saying, I am mindful that that is not a course which must be taken in every case and that, generally, a sentencing judge has a wide discretion in determining whether there should be any adjustment to the statutory ratio and, if so, to what extent: see R v Clarke [2009] NSWCCA 49, per McClellan CJ at CL (with whom James and Adams JJ agreed) at [11], [13] - [14], and the cases to which his Honour there refers. I am also mindful of the fact that, given the applicant's criminal history, an assessment of his prospects of rehabilitation would be, at best, guarded. Nevertheless, a reasonable time should be allowed to foster his reform and I am satisfied that a period of only 10 months of conditional liberty is inadequate for that purpose.

Manifestly excessive? 22 Finally, Mr Johnston submitted that the aggregate sentence is manifestly excessive. This, he said, is the result of the manner in which the sentences were structured. Put shortly, he argued that the sentence for the earlier offences the subject of the s 12 bond and the sentence for the ongoing supply offence were severe and, that being so, the total accumulation of the latter sentence upon the non-parole period for the former was uncalled for. 23 As I am satisfied that this Court should intervene for the reasons I have already expressed, it is not necessary to decide this ground. That said, I consider that the 3 year sentence for the ongoing supply offence which his Honour originally proposed was appropriate. While it is true that the objective gravity of that offence was low, the sentence had to reflect the applicant's criminal history and the fact that it was committed while the applicant was subject to a s 12 bond, and also had to take into account the further offences on the Form 1. Equally, while it would have been open to his Honour to direct that that sentence be partially concurrent with the earlier sentence, the circumstances of the case are such that total accumulation was also appropriate.

Re-sentence 24 I would redress his Honour's error in determining the head sentence for the ongoing supply offence by restoring the sentence he first proposed, that is, imprisonment for 3 years. Like his Honour, I would direct that that sentence be served cumulatively upon the 18 month non-parole period fixed in respect of the 2 year sentence following the revocation of the s 12 bond. However, because of that accumulation, I would find special circumstances and adjust the non-parole period for the ongoing supply offence, so as to arrive at an effective non-parole period which is roughly 75% of the aggregate sentence. In that regard I also take into account affidavit evidence, received for the purpose of re-sentence, that the applicant has been participating in a drug and alcohol programme in custody and appears to be responding well to it. 25 The aggregate sentence would be 4 years and 6 months. 75% of that term would be about 3 years and 4 months. I would round that down to 3 years and 3 months, so as to leave a period of parole eligibility of 15 months. 26 Accordingly, I would grant leave to appeal and allow the appeal. I would quash the sentence for the offence of ongoing supply of a prohibited drug. In lieu, taking into account the matters on the Form 1, I would sentence the applicant to a non-parole period of 1 year and 9 months, to commence on 16 September 2009 and to expire on 15 June 2011, and a balance of term of 1 year and 3 months, to commence on 16 June 2011 and to expire on 15 September 2012. 27 JOHNSON J: I agree with Hidden J.

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CITATION: Jamie Peter DOLMAN v R [2010] NSWCCA 137

R v Tobar [2004] NSWCCA 391, 150 A Crim R 104 CASES CITED : R v Suaalii [2005] NSWCCA 206 R v Mauai [2005] NSWCCA 207 R v Clarke [2009] NSWCCA 49

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Cases Cited (5)