Jamie Peter DOLMAN v R

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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